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Kosovo: A Precedent?


Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, SelfDetermination and Minority Rights

Edited by

James Summers

LEIDEN • BOSTON 2011


This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Kosovo - a precedent? : the declaration of independence, the advisory opinion and implications for statehood, self-determination and minority rights / Edited by James Summers. p. cm. Includes bibliographical references and index. ISBN 978-90-04-17599-0 (hardback : alk. paper) 1. Kosovo (Republic)--International status. 2. Self-determination, National--Kosovo (Republic) 3. Sovereignty--Kosovo (Republic) 4. Kosovo (Republic)--Politics and government. 5. Kosovo (Republic)--History--Autonomy and independence movements. I. Summers, James, 1974KZ4264.K67 2011 341.26--dc23

2011028708

isbn: 978 9004 17599 0 Copyright 2011 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Global Oriental, Hotei Publishing, idc Publishers, Martinus Nijhoff Publishers and vsp. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change.


Dedicated to the memory of Kaiyan Homi Kaikobad Professor of International Law, University of Brunel (1950-2010).


Table of Contents

Editor’s Preface

ix

Notes on the Contributors

xi

List of Abbreviations

xv

Part I

Introduction

1

Chapter 1

Kosovo: From Yugoslav Province to Disputed Independence James Summers

3

Part II

Kosovo’s Unilateral Declaration of Independence

53

Chapter 2

Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law Kaiyan H. Kaikobad Foreword by Colin Warbrick

55

From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained? Morag Goodwin

87

Chapter 3

Chapter 4

Chapter 5

A Contemporary Interpretation of the Principles of Sovereignty, Territorial Integrity and Self-Determination, and the Kosovo Conundrum Besfort Rrecaj Kosovo: Unilateral Secession and Multilateral State-Making Jure Vidmar

109

143


viii

Table of Contents

Part III

Kosovo and Self-Determination and Minority Rights

179

Chapter 6

Self-Determination and Minority Protection after Kosovo Helen Quane

181

Chapter 7

Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other” Elizabeth Chadwick

213

The Long Intervention in Kosovo: A Self-Determination Imperative? Stephen Tierney

249

Chapter 8

Chapter 9

Chapter 10

Kosovo’s Independence: Re-Examining the Principles Established by the EC Badinter Commission in Light of the ICJ’s Advisory Opinion Gulara Guliyeva

279

The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement Stephen Allen And Edward Guntrip

303

Part IV

Implications of Kosovo as a Precedent for Other Regions

343

Chapter 11

Is Kosovo and Metohija Indeed a ‘Unique Case’? Miodrag A. Jovanović

345

Chapter 12

The Impact of the ‘Kosovo Precedent’ on Self-Determination Struggles Snežana Trifunovska

375

The Impact of Kosovo: A Precedent for Secession in Georgia? Vakhtang Vakhtangidze

395

The Basque Country: With or Without the Spanish Constitution, Like or Unlike the Kosovo Precedent? Miryam Rodríguez-Izquierdo Serrano

427

Chapter 13

Chapter 14

Index

445


Editor’s Preface

On 17 February 2008 the authorities in Kosovo (how they are characterised is a matter 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 Kosovo’s status, but also raised important legal questions about the nature of international 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 International 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: raising debates on authority in an international territorial administration, remedial secession, the dimensions of self-determination and the break-up of states. This dispute continues. The Opinion has not had a dramatic effect 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 Pentassuglia, 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 University for their support with the conference. With sadness I must also write that Professor Kaiyan Kaikobad, who presented a paper, “Another Frozen Conflict: Kosovo’s Unilateral Declaration and International Law”, at the Lancaster Conference, passed away in July 2010 after a short illness. His uncompleted draft has been finalised by Colin Warbrick and my thanks go to Colin and Kaiyan’s wife Dhun for their assistance with his chapter. This book is dedicated to Kaiyan’s 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-determination 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 Xanthaki) of Reflections on the United Nations Declaration on the Rights of Indigenous Peoples and International Law (Oxford: Hart Publishing, 2010). Dr. ELIZABETH CHADWICK is a Reader in Law at Nottingham Law School, Nottingham Trent University. In addition to numerous articles, she is the author of the monographs: Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict (The Hague: Martinus Nijhoff, 1996), Traditional Neutrality Revisited: Law, Theory, and Case Studies (The Hague: Kluwer 2002) and Self-Determination in the Post-9/11 Era (London: Routledge, forthcoming in 2011). 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 specific focus on technology and the regulation of technology in relation to development issues. Dr. GULARA GULIYEVA is a Teaching Fellow at the Law School, University of Birmingham, where she completed her PhD on “The Rights of Minorities in the European Union”. She is a graduate of Baku State University and completed her LLMs at Birmingham and at Western University, Baku, Azerbaijan, where she taught both international and European Union law (2001-2005). She has also worked on rule of law and legal education reform projects for the American Bar Association Central European and Eurasian Law Initiative (ABA-CEELI) in Baku. EDWARD GUNTRIP is a PhD Candidate at Brunel University. His research interests lie in public international law and he is currently writing his dissertation on the intersection of foreign direct investment and human rights law. Edward has prac-


xii

Notes of the Contributors

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 JOVANOVIĆ received his LL.M and PhD from the Faculty of Law, University of Belgrade, where he presently works as an Аssociate 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 problems 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 international journals and edited volumes. His internationally published books include Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven: Utrecht, 2007); (with Slobodan Samardžić) Federalism and Decentralisation in Eastern Europe: Between Transition and Secession, (Zurich and Vienna: Institut du Fédéralisme, 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 Affairs of the Government of Bahrain. A member of the Pakistan High Court Bar, he had been consulted 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 Court’s Powers 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. Dr. MIRYAM RODRÍGUEZ-IZQUIERDO SERRANO is Professor of Constitutional Law at the Faculty of Law, University of Seville. She completed her PhD at the University of Seville in April 2009 with the work, “Primacy and Subsidiarity in the European Union”. She has been Lecturer on Spanish Constitutional Law and Press Freedoms as Fundamental Rights since 2005. In 2007 she received a Research Award from the Andalusian Network of European Information for her research on the Sub-


Notes of the Contributors

sidiarity Principle in EU Law, which was published as Posibilidades Constitucionales del Principio de Subsidiariedad (Granada: University of Granada, 2008). She has been a guest lecturer at the Vermont Law School Seminar on Spanish Constitutional Law at the University of Seville in March 2007, visiting lecturer at Lancaster University, United Kingdom, in February 2009, at the University of Münster, Germany, in May 2010 and visiting researcher at the European Academy of Bolzano, Italy, from July to September 2010. BESFORT RRECAJ is a Lecturer at the University of Pristina. He is a PhD Candidate at the University of Pristina’s Law Faculty. His PhD thesis is on the Politics of the Judicial Regimes of Nuclear Energy in the Aspect of International Security. Besfort finished his LL.M focussed on international law at the State University of New York Buffalo Law School. Besfort has been published in English, Albanian and Croatian with the main focus on issues of self-determination and the position of Kosovo in the international realm. He is the author of Kosovo’s Right to Self-Determination and Statehood (Pristina: College Victory, 2006). Dr. JAMES SUMMERS is a Lecturer in Law at Lancaster University. He is the author of Peoples and International Law (Leiden: Brill, 2007). Professor STEPHEN TIERNEY is Professor of Constitutional Theory at the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. He was a British Academy Senior Research Fellow 2008-09 and served as Rapporteur to the International Law Association Committee on Theory and International Law 2002-05. He has published six books including Constitutional Law and National Pluralism (Oxford: Oxford University Press 2004). Dr. SNEŽANA TRIFUNOVSKA is Associate Professor at the Law Faculty, Radboud University Nijmegen, The Netherlands. She is particularly interested in: the law of international organizations, human rights, minority protection, and international individual criminal responsibility. Among her more important publications are the following books: Yugoslavia through Documents – From its Creation to its Dissolution (Dordrecht: Martinus Nijhoff, 1994); The Transatlantic Alliance on the Eve of the New Millennium (The Hague: Kluwer, 1996); Yugoslavia through Documents – From its Dissolution to the Peace Settlement (Dordrecht: Martinus Nijhoff, 1999); Minorities in Europe – Croatia, Estonia and Slovakia (The Hague: T. M. C. Asser, 1999); Minority Rights in Europe – European Minorities and Languages (The Hague: T. M. C. Asser, 2001); and the monographs, North Atlantic Treaty Organization (Supplement No. 13, 2002 and Supplement No. 35, 2009) and Organization for Security and Cooperation in Europe (OSCE) (Supplement No. 25, 2006 and Supplement No. 38, 2010) in the International Encyclopaedia of Laws Series (Kluwer: Alphen Aan Den Rijn) VAKHTANG VAKHTANGIDZE is a graduate of the Sokhumi Branch of Tbilisi State University (2002), the University of Warsaw (2005) and the University of Essex (2009). Has been actively involved in human rights litigation with the Human Rights

xiii


xiv

Notes of the Contributors

NGO ‘Article 42 of the Constitution’, which was the first Georgian organisation to successfully support two complaints against Georgia in the European Court of Human 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 fi led with the Court arising from the conflict 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. Dr. JURE VIDMAR is an Anglo-German Fellow at the Institute of European and Comparative Law, Faculty of Law, University of Oxford. He holds a PhD in politics from the University of Salzburg, Austria (2007), as well as an LLM and a PhD in law from the University of Nottingham, UK (2006 and 2009, respectively). Jure’s main research interests lie within public international law, international law of human rights, political theory and law of the EU. He has previously published on topics such as the creation, recognition and delimitation of states, human rights and democracy, the right of self-determination, the right to political participation and democratisation theory. COLIN WARBRICK retired as Barber Professor Jurisprudence at the Birmingham Law School in 2008 and is now an Honorary Professor there. He was an international lawyer, with a particular interest in statehood and recognition. His article, “Kosovo: the Declaration of Independence” is published in International and Comparative Law Quarterly 57 (2008): 675.


List of Abbreviations

CR EC ETA EULEX FCNM FRY GA Res. ICCPR ICESCR ICJ ICO ICR ICRC ICTY IDP IIC ILC IP ISG KFOR KPC KPS LDK NAC NATO NGO OSCE PDK PNV PP PSOE SC Res.

Compte Rendu (Verbatim Records) (ICJ) European Community Euskadi Ta Askatasuna European Union Rule of Law Mission in Kosovo Framework Convention for the Protection of National Minorities Federal Republic of Yugoslavia (Serbia and Montenegro) General Assembly Resolution International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Civilian OďŹƒce International Civilian Representative International Committee of the Red Cross International Criminal Tribunal for the former Yugoslavia Internally Displaced Person International Independent Commission on Kosovo International Law Commission Ibarretxe Plan International Steering Group Kosovo Force Kosovo Protection Corps Kosovo Police Service Democratic League of Kosova North Atlantic Council North Atlantic Treaty Organisation Non-Governmental Organisation Organisation for Security and Cooperation in Europe Democratic Party of Kosovo Basque Nationalist Party Popular Party Spanish Socialist Party Security Council Resolution


xvi

List of Abbreviations

SFRY SOE SRSG SUSM TRNC UCK UDI UNCLOS UNHCR UNMIK UNOSEK UNPROFOR UNTAES UNTAET

Socialist Federal Republic of Yugoslavia Socially-Owned Enterprise Special Representative of the Secretary-General State Union of Serbia and Montenegro Turkish Republic of Northern Cyprus Ushtria Clirimtare e Kosoves (Kosovo Liberation Army) Unilateral Declaration of Independence United Nations Convention on the Law of the Sea 1982 United Nations High Commissioner for Refugees United Nations Mission in Kosovo. United Nations Office of the Special Envoy for Kosovo United Nations Protection Force United Nations Transitional Authority for Eastern Slavonia, Baranja and Western Sirmium United Nations Transitional Administration in East Timor


I. Introduction


Ni

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Macedonia


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. Formerly an autonomous province of Serbia in the Socialist Federation of Yugoslavia, Kosovo played a central role in the federation’s 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 Montenegro. 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 world’s newest nation, but about two-thirds don’t. 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 significant 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 flat 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 Montenegro, which have significant Albanian minorities, lie to the south-east and west, respectively. Kosovo’s present population is 2.1 million (2006). Its ethnic composition 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 ‘Kosovë’. Serbs refer to the territory as ‘Kosovo and Metohija (Косово и Метохија)’. ‘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 significant dialectal difference 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 Kosovo’s geography and ethnography does not explain the passions which have shaped Kosovo’s recent history. The depth of those feelings is vividly illustrated by this account from the Czech politician Thomas Masaryk in 1915: “During the last war against the Turks I happened to be in Serbia, and a Serbian officer told me his experience on the battlefield. 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 officers, 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 friend’s 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, reflected in monasteries and churches, and the battlefield on which in 1389, their history took a decisive turn with defeat at the hands of the Ottomans and reduction to a vas

   

Statistical Office of Kosovo, Demographic Changes of the Kosovo Population - (Pristina: Statistical Office of Kosovo, ), . See also Written Contribution of Kosovo,  April , para. .. Stark Draper, “The Conceptualization of an Albanian Nation,” Ethnic and Racial Studies  (): , . Thomas G. Masaryk, The Problem of Small Nations in the European Crisis (London: Althorne Press, ), . Written Statement of Serbia,  April , para. . “The people of Kosovo are distinct, being a group of which  are Kosovo Albanians, who speak the Albanian language, and who mostly share a Muslim religious identity.” Written Contribution of Kosovo,  April , para. .. See also Gerd Seidel, “A New Dimension of the Right of Self-Determination in Kosovo?” in Kosovo and the International Community: A Legal Assessment, ed. Christian Tomuschat (The Hague: Kluwer, ), -.


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

sal status. Nonetheless, Kosovo’s place in Serbia’s sense of nationhood is secured through ties of history, territory and sovereignty.7 In terms of population, Serbs in Kosovo are an insecure minority. Albanian-speakers are likely to have formed a majority in Kosovo, at least, since the mid-nineteenth century, though the process by which this majority was formed has been fiercely contested.8 Kosovo Albanians, on the other hand, construct their national identity from a majority population sharing ties of culture and language (Albanian is distinct from the ‘Yugoslav’ (‘South Slav’) languages), religion and an identity that flows from that. They root themselves historically to the territory, through a connection, albeit an ambiguous and tenuous one, to a pre-Slav population known as the Illyrians.9 They would stress their alienation from the political ties of the Serbian state by systematic repression, not just around 1999, but also in several periods before then.10 2

Kosovo as a Yugoslav Province

On 28 June 1989, hundreds of thousands of Serbs met on the Field of the Blackbirds to celebrate the 600th anniversary of the Battle of Kosovo Polje. There they were addressed by the leader of the Serbian Republic Slobodan Milošević, who issued a stark warning that Serbs were once again engaged in battles and quarrels, and while they were not armed battles, yet, this could not be ruled out.11 This strident Serbian nationalism, expressed and implemented in Kosovo, would test the already fraying bonds of the Yugoslav Federation and two years later it would no longer exist. The Socialist Federal Republic of Yugoslavia (SFRY) was a political reconfiguration of the Kingdom of Yugoslavia, a state set up in 1918 under Serbia’s ruling dynasty, and originally known (until 1929) as the Kingdom of the Serbs, Croats and Slovenes. The Communist Partisans, led by Josep Broz Tito, a Croat, restructured the old kingdom as a multinational socialist state. This federal structure was intended to limit Serbian domination which had been characteristic of inter-war Yugoslavia. The SFRY was constructed as a federation of six sovereign republics: Slovenia, Serbia, Croatia, Bosnia-Herzegovina, Montenegro and Macedonia. These generally   

 

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 Balkans 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 Kosovo,” 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, -.

5


6

I.

Introduction

corresponded with five ‘nations’: Slovenes, Serbs, Croats, Montenegrins and Macedonians: who formed the majority in their eponymous republics. The exception was Bosnia-Herzegovina, where a Muslim nation, recognised in 1971,12 formed the largest group. The Yugoslav nations had a right to self-determination and their republics could in theory secede. However, this federal structure was in reality a facade for a unitary state based on the Communist Party.13 Kosovo had the status of one of two autonomies within the Republic of Serbia. The other was Voivodina in northern Serbia, which had large Hungarian and Croat minorities. The autonomous status of Kosovo varied over the history of Yugoslavia and how the territorial unit14 and its population15 are characterised, has been divisive as they are seen to relate to the legitimacy of Kosovo’s subsequent independence declaration. In the 1946 Yugoslav Constitution, Kosovo was established as the Autonomous Region of Kosovo-Metohija within Serbia. This autonomous status, though, did not allow for local independent decision-making, and was notably less substantial than Voivodina’s position as an ‘Autonomous Province’, with its own legislature and supreme court. In 1963 Kosovo-Metohija was upgraded to an Autonomous Province. In 1968 ‘Metohija’, a Serb designation, was dropped from its name, and it gained its own constitution, legislative and judicial authority and representation in the federal parliament. In 1969 it gained a supreme court and an independent university in Pristina (formerly a branch of Belgrade).16 In the 1974 Constitution, the distinction between autonomies and republics was further eroded. Kosovo had its own government, police and bank. It enjoyed extensive self-government, with a veto over legislation proposed from Serbia, and representation alongside the republics in federal legislative and judicial organs.17 In 1978 a Kosovo Albanian held the rotating Vice-Presidency of the federation.18

  



  

Malcolm, note  above, . Viktor Meier, Yugoslavia: A History of Its Demise (London: Routledge, ), . In ICJ submissions Finland and Ireland considered Kosovo comparable to a republic within Yugoslavia, while Denmark and Poland emphasised its effective “dual nature” or “dual status” as an autonomy and de facto republic. Written Statement of Finland,  April , para. ; Written Statement of Ireland,  April , para. ; Written Statement by Denmark,  April , para .; Written Statement of Poland,  April , para. .. On the other hand, Russia and Serbia pointed out that Kosovo was not a republic. Written Statement by Russia,  April , para. ; Written Statement of Serbia,  April , para.  Albania in written submissions to the ICJ referred to Albanians as the “third nation” in Yugoslavia in terms of population. Written Statement of Albania,  April , para. . By contrast Russia highlighted that they were not a ‘people’ within Yugoslavia. Written Statement of Russia,  April , para. . Vickers, note  above, -, , -. Ibid. -; Judah, note  above, . Vickers, note  above, .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

Albanians were not one of the ‘nations’ of Yugoslavia. Initially they were classed as a ‘national minority’, but were subsequently reclassified 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 Constitution, which repeatedly referred to nations and nationalities having equal rights. The theory behind the nation/nationality distinction was that Albanians and Hungarians 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 distinction and the failure to gain a republic was seen by Albanians as discrimination, especially as they outnumbered some South Slav ‘nations’ which had their own republics, such as the Montenegrins and Macedonians.21 3

The Break Up of Yugoslavia

Despite the federal structure of Yugoslavia being something of a facade, inefficiencies in the communist system allowed local apparatchiks to build up considerable authority.22 The Yugoslav republics were effectively constructed as national states and their local elites were well placed to play the national card. Kosovo too was a relatively homogeneous ethnic entity. Unlike Voivodina, which was a historical entity with a Serb majority, Kosovo could play the role of an Albanian national state within Yugoslavia. Initially, the potential for the expression of Albanian nationalism was limited by the security régime of Alexander Ranković, the Serb Vice President of Yugoslavia, whose secret police created a climate of fear amongst Serbia’s minorities. However, in 1966, following a power struggle with Tito, Ranković and his security apparatus were purged.23 This coincided with a general devolution of power from the centre, as Tito attempting to reform Yugoslavia’s dysfunctional economy, sought to bypass the conservative federal bureaucracy by transferring more power to reformist republican leaders.24 Through the late 1960s Kosovo gained more powers and Albanian culture greater self-expression through education and the university. Ties between Yugoslavia and Eastern Europe’s other independent communist state, Albania strengthened following the Soviet invasion of Czechoslovakia in 1968. This opened  

   

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 Conflict: The Case of Serbia,” in Nationalism and Ethnic Conflict, eds. Michael E. Brown et al. (Cambridge: MIT Press, ), -.

7


8

I.

Introduction

the door to greater contact between Kosovo’s Albanians and Albania, with the latter having more cultural weight. Kosovo’s Albanian became standardised around the Tosk dialect used in Albania. While the Communist Party in Kosovo remained almost exclusively Serb and Montenegrin, the province’s expanding public institutions were increasingly staffed with Albanians. Previously dominant minorities now began to complain about discrimination. Changing demographics driven by the Albanian 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 Officials 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 discontent also flared in the province, with the university providing a focal point for mobilisation. In 1968 student riots led to wider demonstrations in Kosovo and Macedonia, demanding a republic and the unification 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 Kosovo’s status further advancing with the 1974 Constitution, 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 devolved to an eight member collective presidency, made up equally of representatives 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 widening. While it had significant 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 difficult prospects. The unemployment rate was the highest in the Yugoslavia.31 In March 1981 student protests over

      

Vickers, note  above, -, . Ibid. , . Ramet, note  above, ; Christopher Bennett, Yugoslavia’s Bloody Collapse: Causes, Course and Consequences (London, Hurst and Co., ), . Vickers, note  above, , - Meier, note  above, -: Goldstein, note  above, -; Vickers, note  above, . Ana S. Trbovich, A Legal Geography of Yugoslavia’s Disintegration (Oxford: Oxford University Press, ), . Vickers, note  above, , , -; Malcolm, note  above, .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

conditions at Pristina University escalated into riots, targeting Serbs, and demonstrations in Kosovo’s main towns demanding a republic and Albanian unification. 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 Slobodan Milošević. Milošević famously visited Kosovo in 1987 and told Serbs clashing 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 October 1988 and a coup in Montenegro in January 1989. In March 1989 Serbia reestablished direct control over the autonomous provinces. Kosovo’s Assembly, surrounded by police and tanks, endorsed the effective removal of its self-government.35 Legislation could now only be passed in Kosovo with prior approval from the Serbian National Assembly and the province officially 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 Milošević had gone a long way towards the first option in the Memorandum. On 28 June 1989, when addressing 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. Milošević’s attempt to create a centralised Serb-controlled state met with resistance from the other republics, in particular, Slovenia, which pressed for Yugoslavia to be restructured as a looser, more flexible federation.38 Conflict 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 Milošević threatened that if this were to happen Serbia’s borders with the other republics would be an “open question”. This was not an idle threat. Serbian authorities actively

       

Vickers, note  above, -, ; Judah, note  above, -. Judah, note  above, . Meier, note  above, ; Malcolm, note  above, -. Judah, note  above, . Peter Radan, The Break-Up of Yugoslavia and International Law (London: Routledge, ), . Trbovich, note  above, -; Vickers, note  above, -. Ramet, note  above, ; Bennett, note  above, ; Judah, note  above, . Meier, note  above, -. Bennett, note  above, .

9


10

I.

Introduction

sought to promote unrest amongst the Serb minority in Croatia.40 Caught in the middle were Macedonia and Bosnia-Herzegovina. Macedonia supported maintaining the federation, as did Bosnia, which by geography and demography risked being torn apart in a conflict 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 Kosovo’s Assembly declared Kosovo a republic outside Serbia.42 In response, Serbia on 5 July dissolved the Kosovo’s 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 Yugoslavia’s territorial integrity emboldened Milošević44 and negotiations collapsed in May 1991 when Serbia and Montenegro refused to accept Stipe Mesić, 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 unofficial 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 October 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 Yugoslavia’s 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 Presidency and government, and the presidents of the six republics, but not representatives from the autonomies. Additionally, the EC established an arbitration commission, composed of the presidents of constitutional courts in France, Germany, Italy,    

    

Meier, note  above, -. Ibid. , . Judah, note  above, ; Vickers, note  above, . “SR Serbia, Law Terminating Work of SAP of Kosovo Assembly and Executive Council,  July ,” in The Crisis in Kosovo -, ed. Marc Weller (Cambridge: Documents and Analysis Publishing, ), -; Trbovich, note  above, . Bennett, note  above, . Marc Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,” American Journal of International Law  (): . See Snežana Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (Dordrecht: Martinus Nijhoff, ), , . “Central Board of Kosova for the Conduct of the Referendum, Result,  October ,” in Weller, note  above, . Radan, note  above, ; Vickers, note  above, .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 recognition, 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 confirmed 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 Yugoslavia 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 Yugoslavia, federal units had unilaterally declared independence and were forcibly resisted 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, including 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-Determination of Peoples,”  European Journal of International Law  (): -. “Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia,  December ,” 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. , International 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  (): .

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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 possidetis, a principle which upheld established administrative frontiers upon independence, and had been previously used in decolonisation in Latin America and Africa.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 justified this extension from the finding 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 International Court in Burkina Faso/Mali had only referred to the principle in the context 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 effect.”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 specifically 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 different function in international law: preserving existing states within their borders. The significance 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 Constitution, 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, Organisation of African Unity Charter . See also Article (b), African Union, Constitutive Act . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International 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 specific system of international law. It is a general principle, which is logically connected with the phenomenon of obtaining independence, 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. , International 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

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: “it is well established that, whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise.”62

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 selfdetermination.63 Nonetheless, minority rights were applicable and found to have a jus cogens character.64 The rights of populations within states also extended to autonomy. 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 difference 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 remains of the Federal Army, proclaimed independence as the Republic of Krajina and the Republika Srpska, respectively. Better armed than the Croatian and Bosnian governments, 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 Yugoslavia.66 In February 1992, a UN peacekeeping mission, UNPROFOR67 was established,68

      

Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): , para. . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): , para. . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): , para. ; Opinion No. , ibid. , para. . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): -, paras. -. SC Res. , UN Doc. S/RES/ ( September ). United Nations Protection Force. SC Res. , UN Doc. S/RES/ ( February ).

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14

I.

Introduction

deployed first in Croatia, and then, as the conflict spread, Bosnia-Herzegovina.69 ‘Safe areas’ were established for Muslim towns and cities encircled by Serb forces, protected by UNPROFOR.70 However, the weakness of this deployment was brutally demonstrated in July 1995 when Dutch peacekeepers were unable to prevent the Muslim town of Srebrenica being overrun by Bosnian Serb forces, with the massacre of 7,000 male inhabitants.71 By 1995, though, the military balance had shifted, due to support for the Croatian army from the United States. Croatia overran the Serb regions of Western Slavonia and Krajina in summer 1995. Another Serb region, Eastern Slavonia was put under a UN administration, UNTAES in January 199672 and transferred to Croatia in January 1998.73 In September 1995 NATO began airstrikes against Bosnian Serbs, which ended the secession with an agreement for extensive autonomy initialled at a US Air Force Base in Dayton, Ohio on 21 November 1995, and signed in Paris on 14 December.74 The agreement maintained Bosnia-Herzegovina as a state within its established frontiers, upholding the federal dissolution model, at least formally, but with substantial powers held by two ethnically-defined ‘Entities’: the Muslim-Croat Federation and the Republika Srpska.75 The Kosovo secessionist movement initially avoided the same violence that engulfed Croatia and Bosnia. Ethnic Albanians, proclaimed and established a de facto republic, consisting of parallel institutions, including health, education, and the media, funded by a voluntary 3 tax paid by Kosovars and the Albanian diaspora.76 The principal organisation behind the institutions was the Democratic League of Kosova (LDK). Founded in December 1989, this moderate nationalist movement originated from a literature association, and drew in members of the former Communist Party.   







 

See United Nations Protection Force, Background. Accessed  October . http:// www.un.org/en/peacekeeping/missions/past/unprof_b.htm. SC Res. , UN Doc. S/RES/ ( April ) and SC Res. , UN Doc.  ( May ). Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)  ICJ para.  ( February). SC Res. , UN Doc. S/RES/ ( January ); Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, UN Doc. S//, Annex ( November ). See SC Res. , UN Doc. S/RES/ ( December ). See Ralph Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration,” American Journal of International Law  (): -; Carsten Stahn, “International Territorial Administration in the Former Yugoslavia: Origins, Developments and Challenges Ahead,” Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht  (): . See Paul C. Szasz, “Bosnia and Herzegovina-Croatia-Yugoslavia: General Framework Agreement for Peace in Bosnia and Herzegovina with Annexes, Introductory Note,” International Legal Materials  (): . Article (), Constitution of Bosnia and Herzegovina, International Legal Materials  (): . Judah, note  above, .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 Albanians 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 offering land to encourage migration. 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 conflict which would give a pretext for ethnic cleansing; to delegitimise Serbia’s rule by nonparticipation and establish the ‘Republic’ as an effective authority; and to bring in international involvement.79 The strategy was initially successful, earning international praise, and after attempts to destroy the ‘Republic’ a degree of toleration from Milošević.80 The attraction was that Kosovo was contained. But this was as a miserable and unsustainable status quo not a political solution. Meanwhile, Rugova’s success in preventing a violent revolt, denied him the international intervention that he hoped for. The policy of non-participation also helped maintain Milošević 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 Liberation Army (KLA), or Ushtria Clirimtare e Kosoves (UCK). Formed in the early 1990s, it was a mix of the descendents of rightist resistance fighters in World War Two and left-wing Pristina University graduates cultivated by Albania.82 The KLA carried out

 

   

Malcolm, note  above, -; Judah, note  above, ; Vickers, note  above, . Richard Caplan, “International Diplomacy and the Crisis in Kosovo,” International Affairs  (): ; Malcolm, note  above, -; Vickers, note  above, ; Juliane Kokott, “Human Rights Situation in Kosovo -,” in Kosovo and the International Community: A Legal Assessment, ed. Christian Tomuschat (The Hague: Kluwer, ), -. Malcolm, note  above, ; Vickers, note  above, ; Judah, note  above, . Caplan, note  above, . Vickers, note  above, -. Chris Hedges, “Kosovo’s Next Masters?” Foreign Affairs : (): -.

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I.

Introduction

its first armed attack in May 1993, killing two Serb police officers, 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 conflict in Bosnia-Herzegovina and recognition of Yugoslavia (FRY) with Kosovo within its territory. The Security Council subsequently lifted sanctions on Yugoslavia,86 though ‘outer wall’ sanctions, on membership in international organisations and assistance from international fi nancial 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 Milošević, 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 conflict by engagement with Milošević, the effect in Kosovo was to shift support to the radicals, laying the foundations for the next Balkan conflict. In spring 1997 the weapons for a mass insurrection became available when the Albanian government collapsed in the wake of a financial crisis. Government armouries were looted, flooding the region with hundreds of thousands of illegal weapons.89 4

The KLA Insurgency and the Rambouillet Negotiations

On 28 November 1997, three KLA members publicly declared the existence of their organisation at the funeral of an Albanian school teacher. In March 1998 an armed rebellion began in Kosovo, initially led by the KLA, but taking on its own momentum as Albanian villages armed themselves and took control of their territory. Large areas of Kosovo came under nominal KLA control. The international response was coordinated through the Security Council and the Contact Group, a diplomatic grouping composed of the US, Russia, France, Germany, Britain and later Italy, which had formed in 1994 in response to the war in Bosnia.90 On 31 March 1998 the Security  

     

Vickers, note  above, . See Dominic McGoldrick, “From Yugoslavia to Bosnia: Accommodating National Identity in National and International Law,” International Journal on Minority and Group Rights  (): -. Judah, note  above, . SC Res. , UN Doc. S/RES/ ( November ); SC Res. , UN Doc. S/ RES/ ( October ). Vickers, note  above, ; Trbovich, note  above, . Caplan, note  above, -. Hedges, note , above, ; Judah, note  above, . See Steven L. Burg and Paul S. Shoup, The War in Bosnia-Herzegovina: Ethnic Conflict and International Intervention (Armonk: M. E. Sharpe, ), -.


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 specified 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 process of indirect negotiations under Chris Hill, the US Ambassador to Macedonia, in which proposals for autonomy were presented to both sides. Security Council resolutions 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 offensive against Albanians. In January the bodies of 45 individuals, apparently 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 principles, which would determine the parameters of the settlement. These included: an interim agreement, with a final 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 ceasefire, 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 modifications, within the Contact Group’s non-negotiable principles. The negotiations produced a text, but neither party signed it. The Kosovo delegation indicated acceptance subject to consultations with domestic authorities, while the Yugoslav 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     

SC Res. , UN Doc. S/RES/ ( March ), para. . Tim Judah, Kosovo: War and Revenge (New Haven: Yale University Press, ), -. SC Res. , UN Doc. S/RES/ ( September ); SC Res. , UN Doc. S/ RES/ ( October ). Marc Weller, “The Rambouillet Conference on Kosovo,” International Affairs  (): -. Ibid. -.

17


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I.

Introduction

Yugoslavia presented proposals which fundamentally challenged it. On 18 March Kosovo representatives alone signed the Rambouillet Accords.96 Meanwhile, while the negotiations were taking place, the ethnic cleansing of thousands of Albanians continued in Kosovo.97 The Rambouillet Accords provided for the deployment of an international force in Kosovo, KFOR, operating under a NATO chain of command.98 They also provided for democratic self-government in Kosovo, within the territorial integrity of Yugoslavia (FRY).99 Nonetheless, while Kosovo was to enjoy extensive autonomy, it was within a clear framework of Yugoslav sovereignty. The FRY retained powers over a common market, monetary policy, defence, foreign affairs, customs, federal taxation and federal elections.100 This self-government, though, was based on an interim constitution and after three years an international meeting would be convened to determine the mechanism for a final settlement. The basis for this would be: the will of the people of Kosovo (inserted at the insistence of the Kosovo delegation), the opinions of the relevant authorities, each party’s efforts towards the implementation of the agreement, and the Helsinki Final Act.101 This combination of elements did not specifically rule out any particular outcome, but it was orientated towards continuing autonomy. The reference to the will of the people has been seen by some as a reference to self-determination, but the Helsinki Final Act explicitly contained this right within territorial integrity. The opinions of relevant authorities were a further factor, but states and the organisations like the UN, EU and OSCE have consistently shown antipathy to secession. The parties’ own behaviour was another consideration. Nonetheless, the Accords firmly located Kosovo’s self-government within the structures of the Yugoslav state. If this status quo could have been established, after three years, the preferred international solution would have been to maintain it.102 However, the Accords would never be implemented. 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 justified by NATO as, “necessary to avert a humanitarian catastrophe”, due to Yugoslavia’s refusal to accept the Rambouillet Accords, failure to fully observe agreed limits on its army and police, and excessive        

Ibid. -; Alex J. Bellamy, Kosovo and International Society (Palgrave MacMillan, Basingstoke, ), -. Bellamy, note  above, . Chapter , Article , UN Doc. S// ( June ), . Chapter , Preamble and Article , UN Doc. S// ( June ), . Chapter , Article , UN Doc. S// ( June ), . Chapter , Article , UN Doc. S// ( June ), . See Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, ), -. Judah, note  above, , .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

and disproportionate use of force in Kosovo.104 However, this action significantly was not authorised by the Security Council in accordance with the UN Charter,105 with Russia and China expressing their opposition. In response to the NATO bombing Serbian forces intensified attacks on Albanians.106 By the end of the campaign 1.3 million Albanians would be refugees or internally displaced. The NATO intervention was raised in the Security Council and divided states between adherence to the UN Charter and humanitarian concerns. Some countries argued that the intervention was legal and could be legally justified. Britain argued,  Javier Solana, Secretary General of NATO, Press Statement,  March . Accessed  October . http://www.nato.int/cps/en/natolive/opinions_.htm  On the legality of the NATO intervention see Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law  (): -; Antonio Cassese, “Ex Injuria Ius Oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?” European Journal of International Law  (): -; Louis Henkin, “Kosovo and the Law of ‘Humanitarian Intervention’,” American Journal of International Law  (): -; Ruth Wedgwood, “NATO’s Campaign in Kosovo,” American Journal of International Law  (): -; Jonathan I. Charney, “Anticipatory Humanitarian Intervention in Kosovo,” American Journal of International Law  (): -; Christine M. Chinkin, “Kosovo: A ‘Good’ or ‘Bad’ War?” American Journal of International Law  (): -; Richard A. Falk, “Kosovo, World Order, and the Future of International Law,” American Journal of International Law  (): -; Thomas M. Franck, “Lessons of Kosovo,” American Journal of International Law  (): ; W. Michael Reisman, “Kosovo’s Antimonies,” American Journal of International Law  (): -; Independent International Commission on Kosovo, The Kosovo Report (Oxford: Oxford University Press, ), -; Nicholas J. Wheeler, Saving Strangers: Humanitarian Intervention in International Society (Oxford: Oxford University Press, ), -, -; Dino Kritsiotis, “The Kosovo Crisis and NATO’s Application of Armed Force against the Federal Republic of Yugoslavia,” International and Comparative Law Quarterly  (): -; N. D. White, “The Legality of Bombing in the Name of Humanity,” Journal of Conflict and Security Law  (): -; Peter Hilpold, “Humanitarian Intervention: Is There a Need for a Legal Reappraisal?” European Journal of International Law  (): -; Martti Koskenniemi, “‘The Lady Doth Protest too Much’ Kosovo, and the Turn to Ethics in International Law,” Modern Law Review  (): -; Nico Krisch, “Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo,” European Journal of International Law  (): -; Ryan Goodman, “Humanitarian Intervention and the Pretexts for War,” American Journal of International Law  (): -; Srdjan Cvijic, “SelfDetermination as a Challenge to the Legitimacy of Humanitarian Interventions: The Case of Kosovo,” German Law Journal  (): -; Christine Gray, International Law and the Use of Force, rd Edition (Oxford: Oxford University Press, ), -; Jure Vidmar, “International Legal Responses to Kosovo’s Declaration of Independence,” Vanderbilt Journal of Transnational Law  (): -; Peter Hilpold, “The Kosovo Case and International Law: Looking for Applicable Theories,” Chinese Journal of International Law  (): -.  See Eric Herring, ”From Rambouillet to the Kosovo Accords: NATO’s War against Serbia and Its Aftermath,” International Journal of Human Rights  (): -.

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I.

Introduction

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 flowed directly from Yugoslavia’s non-compliance with SC Res. 1203 (1998).108 Slovenia argued for a doctrine of “extreme necessity”, 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 fiercest 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 necessary.114 Argentina again regretted the action but considered that it was the responsibility of Belgrade.115 Brazil found it set a problematic precedent, but fully identified 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             

US, UN Doc. S/PV. ( March ), . Netherlands, UN Doc. S/PV. ( March ), . Slovenia, UN Doc. S/PV. ( March ), . India, UN Doc. S/PV., -. (India was not a member of the Security Council at the time). Russia, UN Doc. S/PV. ( March ), ; China, ibid. ; Namibia, UN Doc. S/PV. ( March ), . Belarus, UN Doc. S/PV. ( May ), ; Cuba, ibid. . Malaysia, UN Doc. S/PV. ( March ), . Argentina, UN Doc. S/PV. ( March ), . Brazil, UN Doc. S/PV. ( June ), . Gabon, UN Doc. S/PV. ( March ), UN Doc. S/PV. ( June ), . Gambia, UN Doc. S/PV. ( March ), . See Slovenia: “State sovereignty is not absolute and... it cannot be used as a tool of denial of humanity resulting in threats to the peace.” UN Doc. S/PV. ( June ), ; Netherlands: “The Charter, to be sure, is much more specific on respect for sovereignty than on respect for human rights, but since the day it was drafted the world has witnessed a gradual shift in that balance, making respect for human rights more mandatory and respect for sovereignty less absolute. Today, we regard it as a generally accepted rule of international law that no sovereign State has the right to terrorize its own citizens.” UN Doc. S/PV. ( June ), . But see China: “In essence, the ‘human rights over sovereignty’ theory serves to infringe upon the sovereignty of other States and to promote hegemonism under the pretext of human rights. This runs totally counter to the purposes and principles of the United Nations Charter.” UN Doc. S/PV. ( June ), .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 Despite 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 6

Security Council Resolution 1244

The Kosovo conflict concluded with a peace agreement on 3 June 1999.123 On 9 June a Military Technical Agreement signed at Kumanovo in Macedonia.124 This provided for the deployment of an international security and civil presence in Kosovo, following a resolution from the Security Council.125 The next day, the Security Council, by 14 votes to 0, with China abstaining,126 adopted SC Res. 1244, which laid out the framework for the international administration of Kosovo. SC Res. 1244 did not retroactively legalise NATO’s intervention against Yugoslavia. But, it did authorise an, “international security presence”,127 with “substantial” NATO participation,128 allowing their forces to enter Kosovo as KFOR under a UN umbrella. It also provided for a unified command structure, which for the bulk of troops involved a NATO command structure, with the exception of Russian peacekeepers. SC Res. 1244 demanded both the withdrawal of Yugoslav military, police and paramilitary forces and the demilitarisation of the KLA and other armed Albanian groups.129 In their place the international security presence would: protect and ensure freedom of movement for itself, the civil presence, and other international organisations; monitor Kosovo’s borders; provide a secure environment for the return of refugees and displaced persons and for the delivery of humanitarian aid.130 It would be responsible for order and public safety and for demining, until they could

 Pakistan, UN Doc. S/PV. ( May ), .  Bahrain, UN Doc. S/PV. ( May ), . See also Albania, Albania, ibid. ; Organization of the Islamic Conference, ibid. .  In favour: China, Namibia, Russia. Against: Argentina, Bahrain, Brazil, Canada, France, Gabon, Gambia, Malaysia, Netherlands, Slovenia, UK and US. UN Doc. S/PV. ( March ), .  Louis Sell, Slobodan Milosevic and the Destruction of Yugoslavia (Durham: Duke University Press, ), -.  KFOR-Yugoslavia and Serbia, Military Technical Agreement,  June . Accessed  September . http://www.nato.int/kosovo/docu/aa.htm  Article () and (), Military Technical Agreement.  UN Doc. S/PV. ( June ), .  SC Res. , UN Doc. S/RES/ ( June ), paras. -.  Annex , para. .  Paragraphs  and .  Paragraph  (c), (g) and (h).

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I.

Introduction

be taken over by the civil presence.131 It also charged with ensuring the demilitarisation of the KLA, and preventing the return of Yugoslav forces,132 except in certain narrow, specified circumstances.133 Alongside the security presence, the resolution provided for a civilian administration, the United Nations Mission in Kosovo, or UNMIK.134 UNMIK’s responsibility was to establish the interim political framework for Kosovo which allowed substantial 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 basic civilian administrative functions in Kosovo, while organising and overseeing the development of, and then elections to, provisional, democratic institutions for autonomous self-government. It would subsequently transfer responsibilities to those provisional institutions, retaining oversight.137 It would also engage with Kosovo’s ultimate status after the interim régime, by facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet Accords.138 Lastly, in the final stage, it would oversee the transfer to authority from the provisional institutions to those established by the political settlement.139 SC Res 1244 explicitly provided for Kosovo’s 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 régime was temporary: “interim” and “provisional”.140 It provided little guidance, though, on the final status that would follow, aside from taking into account the Rambouillet Accords. Given this ambiguity, various parties have focussed on different elements in the resolution to support their preferred final 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

 Paragraph  (d) and (e).  Paragraph (a) and (b).  Those functions were: “Liaison with the international civil mission and the international security presence; Marking/clearing minefields; Maintaining a presence at Serb patrimonial sites; Maintaining a presence at key border crossings.” Annex , para. . However, those troops were never dispatched. KFOR considered it too dangerous for them to return. See Judah, note  above, .  Paragraphs -.  Paragraphs (a),  and Preamble.  Paragraph (h), (k), (j), (g) and (i).  Paragraph  (b)-(d).  Paragraph (e).  Paragraph (f).  Paragraph .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

out in the Helsinki Final Act.141 This provision did reflect the stated desire of a number 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 Security Council resolutions.144 The reference to territorial integrity in the Helsinki Final Act could also imply recognition of self-determination,145 though within limits of territorial integrity,146 though this, in turn, might be affected by human rights.147 The resolution also specifically 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 Kosovo’s institutions) were not so bound.149 Those in favour of Kosovo’s independence, highlighted the reference to Rambouillet, which referred to a settlement based on the will of the people.150 Nonethe-

 Written Statement of China,  April , ; Written Statement of Cyprus,  April , paras. , ; Written Statement of Libya,  April ; Written Statement by Russia,  April , para. ; Written Statement of Serbia,  April , para. ; Written Statement of Spain,  April , para. ; Written Statement of Slovakia,  April , para. ; Written Statement of Venezuela,  April . See also Judge Koroma, Dissenting Opinion, Kosovo Opinion, para. .  Namibia: “[W]e oppose any attempt to dismember the Federal Republic of Yugoslavia, now or in the future.” UN Doc. S/PV. ( June ), ; China: “for the maintenance of international peace and security and the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the Chinese delegation will not block the adoption of this draft resolution.” ibid. ; Argentina: “it lays the foundation for a definitive political solution to the Kosovo crisis that will respect the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.” ibid. ; Russia, ibid. .  Written Statement of Poland,  April , .; Written Statement of United Kingdom,  April , para. .; Written Contribution of Kosovo,  April , para. ..  It can also be noted that SC Res.  (), which explicitly affirmed East Timor’s transition to independence also reaffi rmed, “respect for the sovereignty and territorial integrity of Indonesia”, in its preamble. UN Doc S/RES/ ( October ). See Written Statement of Switzerland,  April , para. .  Written Statement of Albania,  April , para. .  Written Statement of Argentina,  April , para. .  Written Statement of United States of America,  April , -.  Written Statement of United States of America,  April , -; Written Contribution of Kosovo,  April , para. ..  Written Statement of Austria,  April , para. .  Written Statement of Albania,  April , para. ; Written Statement of Denmark,  April , para. .; Statement of Germany,  April , ; Statement of Ireland,  April , para. ; Written Statement of Luxembourg,  March , para. ; Written Statement of United States of America,  April , -; Written Contribution of Kosovo,  April , paras. ., ..

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Introduction

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 “pending a final settlement”,152 a “political process”153 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 selfdetermination. 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 specifically recognises Kosovo as a people with a right of self-determination.159 This ambiguity provides a notable contrast with the other transitional authority of this period, the United Nations Transitional Authority for East Timor (UNTAET), established in SC Res. 1272, on 25 October 1999, which itself was modelled on SC Res. 1244. SC Res. 1272 identified the East Timorese as a people and referred to a process of transition towards independence as an accurate reflection 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 Denmark,  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

The UNTAET administration was to function for a specified period.160 In contrast, UNMIK’s mandate was framed in an open-ended way: to continue until the Security Council terminated it.161 The circumstances in which it would end its mission were thus far from predetermined. 7

The UNMIK Administration

The structure of UNMIK was a series of ‘pillars’, which over time changed according to the situation in the territory and the involvement of different organisations.162 In its initial configuration in 1999, it had four pillars: humanitarian affairs under the UNHCR; democratisation and institution-building under the OSCE; and reconstruction under the EU; the UN-led civil administration.163 On 15 July 2000, as the humanitarian emergency receded, Pillar I under the UNHCR, was officially phased out.164 On 21 May 2001 a new Pillar I, on law enforcement and justice, was established, reflecting concerns over the rule of law and the judiciary.165 At the head of the UNMIK administration was the Special Representative of the Secretary-General (SRSG). The Special Representative was invested with sweeping powers, subsequently enshrined in UNMIK Regulation 1999/1 of 25 July 1999.166 The SRSG exercised of all legislative and executive authority in Kosovo, including the administration of the judiciary. He could change, repeal or suspend existing laws and issue new ones in the form of regulations.167 He could also appoint or dismiss any person in the administration or judiciary.168 Below the Special Representative  Initially this was  January . SC Res. , UN Doc. S/RES/ ( October ), para. . It was then extended to  January  and  May , by SC Res , UN Doc. S/RES/ ( January ) and SC Res , UN Doc. S/RES/ ( January ), respectively.  “[T]he international civil and security presences are established for an initial period of  months, to continue thereafter unless the Security Council decides otherwise”. SC Res. , UN Doc. S/RES/ ( June ), para. .  Ray Murphy, UN Peacekeeping in Lebanon, Somalia and Kosovo: Operational and Legal Issues in Practice (Cambridge: Cambridge University Press, ), -. See Written Contribution of Kosovo,  April , para. ..  UN Doc. S// ( March ), para. .  UN Doc. S// ( September ), paras. , -.  UN Doc. S// ( June ), paras. -.  These were first outlined in a statement by the SRSG on  June . UN Doc. S// ( July ), para. , . See s.(), UNMIK Regulation /: “All legislative ad executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary-General.” UNMIK/REG// ( July ).  UN Doc. S// ( July ), paras , . See s., UNMIK Regulation /.  UN Doc. S// ( July ), para. . s.(), UNMIK Regulation /: “The Special Representative of the Secretary-General may appoint any person to perform functions in the civil administration in Kosovo, including the judiciary, or remove such person...” UNMIK/REG// ( July ). See Stahn, note  above, -.

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I.

Introduction

was the Principal Deputy and deputies for each pillar.169 International administrators were in charge of each of the five regions and thirty municipalities of Kosovo.170 These international administrators were assisted by local staff, 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 administration, Joint Civilian Commissions, chaired by the regional administrators, were established in health, universities, education and culture, municipalities and governance, 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 benefits 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 UNMIK’s Constitutional Framework 2001 was explicit that the development of self-government in Kosovo should be directed towards achieving European standards and closer integration with Europe.175 This régime of political and economic development according to European standards had strong parallels with an earlier tradition of foreign rule: trusteeship.176

   

   

UN Doc. S// ( July ), paras. ,  UN Doc. S// ( July ), para. ; UN Doc. S// ( June ), para.  UN Doc. S// ( July ), para. . Ibid. para. -. See Alexandros Yannis, “The UN as Government in Kosovo,” Global Governance  (): ; Matthias Ruffert, “The Administration of Kosovo and East Timor by the International Community,” International and Comparative Law Quarterly  (): -. UN Doc. S// ( July ), para. . Ibid. paras , -, -, . s.., Constitutional Framework . See Judge Cançado Trindade, Separate Opinion, Kosovo Opinion, paras. , -, , ; Henry H. Perritt, “Structures and Standards for Political Trusteeship,” UCLA Journal of International Law and Foreign Affairs  () -; Michael Bothe and Thilo Marauhn, “UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration,” in Kosovo and the International Community: A Legal Assessment, ed. Christian Tomuschat (The Hague: Kluwer, ), -; Bernhard Knoll, “From Benchmarking to Final Status? Kosovo and the Problem of an International Administration’s Open-Ended Mandate,” European Journal of International Law  (): -; Wilde, note  above, -; Stahn, note  above, -, -; Ralph Wilde, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford University Press, ), , -, -.


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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-SelfGoverning 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 advancement, protection of human rights, and the progressive development of self-government.180 This was very much like the régime proposed for Kosovo. However, this system was seen as tainted, by institutionalising colonialism, and no attempt was made to revive it. Instead, the legal basis for UNMIK and similar régimes 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 off of ‘good government’ over any immediate form of national government. This ideology expanded as the administration 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 justified by good governance can be undermined by demands for national government. Indeed, there was a nearby historical example from the nineteenth century: the Ionian Islands, off the Albanian coast, where an attempt by British liberals 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. Fox’s East India Bill,” in The Works of Edmund Burke (London: George Bell and Sons, ), volume II, ; Edmund Burke, “Speech on Moving 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 (London: 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 Ruffert, 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 Invention of Tradition, eds. Eric Hobsbawm and Terence Ranger (Cambridge: Cambridge University Press, ), . See also Sarah Wambaugh, A Monograph on Plebiscites with a Collection of Official Documents (New York: Oxford University Press, ), .

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Introduction

A further parallel with earlier systems of foreign rule was the relationship between UNMIK and local Kosovar politicians. The UN designed and established institutions for Kosovo, which created opportunities for Kosovo politicians, but as selfgovernment progressed, the UN depended on their cooperation for its success. This dependency meant that the UN had to continuously engage with Kosovo nationalism, 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. a

The Initial Humanitarian Challenge

The first UN officials arrived in Kosovo on 13 June 1999. One of the immediate tasks was to assist the return of displaced people, led by the UNHCR. As a result of ethnic cleansing 800,000 people were refugees in neighbouring countries and 500,000 were internally displaced, out of a population of 1.8 million. They were now returning at rates of up to 50,000 a day.184 Frequently they found that they had no homes to return to. Towns and villages were looted and burned-out. 54,000 houses were estimated to be beyond repair, with another 50,000 sustaining up to 50 damage but repairable. Houses that could be repaired had to be made habitable (at least one warm dry room) before winter with temporary measures. Most homeless returnees were accommodated with host families, but 15,000 heated tents were distributed for others.185 In addition to the humanitarian challenge, there was a collapse in law and order, as the previous authority disintegrated with the departure of Yugoslav forces. This vacuum was fi lled by the KLA and organised crime, with Kosovo becoming a centre for trafficking in drugs and women.186 Looting was widespread and there were daily killings, with violence directed against suspected collaborators, as well as non-Albanians, in particular, Serbs and Roma. In a reverse ethnic cleansing, 220,000 internally displaced persons retreated to Serbia and Montenegro,187 as well as a movement into Serb enclaves in Kosovo.188 This process was most prominent and intense in the  See Bernhard Knoll, “Legitimacy and the UN-Administration of Territory,” German Law Journal  (): -.  UN Doc. S// ( July ), paras. -. Hansjörg Strohmeyer, “Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor,” American Journal of International Law  (): .  UN Doc. S// ( September ), paras. -; UN Doc. S// ( March ), para. .  UN Doc. S// ( July ), paras. -; UN Doc. S// ( December ), para. ; UN Doc. S// ( March ), para. ; UN Doc. S// ( September ), para. .  See UNHCR, “Federal Republic of Yugoslavia,” Global Appeal (), .  UN Doc. S// ( July ), paras. , .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 society. Without jobs they could be a highly destabilising element. Vacancies in the newly established police, fire and civil services were not enough to absorb the bulk of the fighters, 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 Kosovo’s minorities. Some of its members were associated with criminal activity.191 The destabilising potential of KLA fighters became evident with the start of guerrilla 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, escalating in November. In March 2001 fighting spread into Macedonia in the predominantly 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. b

The Establishment of the Provisional Institutions of Self-Government

The civil administration faced an immense task in re-establishing basic utilities and public services, such as telephone lines, water, electricity generation, schools, waste disposal and public transport. It also had to build a functioning administration when public officials from the previous government, overwhelmingly Serb, had fled.193 Violence against minorities remained a persistent feature of life in Kosovo,194 often targeted at children and the elderly.195 By 2002 the attacks became less sys-

 UN Doc. S// ( March ), paras. -.  UN Doc. S// ( September ), para. ; S// ( December ), para. .  UN Doc. S// ( March ), paras , ; Herring, note  above, .  UN Doc. S// ( June ), para. ; UN Doc. S// ( September ), para. ; UN Doc. S// ( December ), paras. , ; UN Doc. S// ( March ), para. ; UN Doc. S// ( June ), paras. -; UN Doc. S// ( September ), paras. -.  UN Doc. S// ( July ), paras. - and . Strohmeyer, note  above, .  UN Doc. S// ( June ), paras , ; UN Doc. S// ( September ), paras.  and ; UN Doc. S// ( January ), para. . See Claude Cahn, “Birth of a Nation: Kosovo and the Persecution of Pariah Minorities,” German Law Journal  (): -; Murphy, note  above, -.  UN Doc. S// ( September ), para. .

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I.

Introduction

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 difficult in such a polarised 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 filled by 2000, but only 46 by non-Albanians, of whom just seven were Serbs.204 Serb judicial candidates were often forced to resign or flee.205 Correspondingly, minorities complained of discrimination in courts and international judges and prosecutors had to be deployed to restore confidence.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. UNMIK initially maintained the laws previously in effect (i.e. Serbian and Yugoslav) provided that they complied with internationally recognised human rights standards and the Security Council’s mandate.208 However, this provoked threats of noncooperation 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,

 UN Doc. S// ( April ), para. ; UN Doc. S// ( July ), para. .  UN Doc. S// ( December ), para. ; UN Doc. S// ( April ), para. .  UN Doc. S// ( December ), para. ; UN Doc. S// ( June ), para. ; UN Doc. S// ( September ), para. ; UN Doc. S// ( April ), para. ; UN Doc. S// ( April ), para. ; UN Doc. S// ( October ), para. .  UN Doc. S// ( October ), para. .  UN Doc. S// ( April ), para. .  UN Doc. S// ( January ), para. .  UN Doc. S// ( December ), para. ; UN Doc. S// ( September ), para. .  UN Doc. S// ( September ), para. .  UN Doc. S// ( June ), para. .  UN Doc. S// ( December ), para. .  UN Doc. S// ( September ), paras.  and .  UN Doc. S// ( March ), para. ; S// ( June ), para. .  s., UNMIK Regulation / ( July ).


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

though this was within a totalitarian system.209 On 12 December 1999 these laws were reintroduced.210 c

The Development of Self-Government

The construction of self-governing institutions was presented by the UN as a “contract” with the Kosovo people,211 whose fulfi lment required meeting prescribed standards. The transfer of authority to self-governing institutions took place in two stages: first, elected municipal authorities in 2000 and, second, an elected assembly in 2001. On 11 August 2000 UNMIK issued Regulation 2000/45, outlining the scope of new municipal authorities, followed two and a half months later, on 28 October, by elections to thirty municipalities.212 The two largest parties were the LDK, with 58 of the vote, and the Democratic Party of Kosovo (PDK), the former KLA political wing, on 27. A high turnout of 79 was, however, predominantly drawn from Albanians. Serbs did not participate. Roma and Turkish involvement was low, though Bosniacs and Gorani did vote.213 Nonetheless, to ensure multiethnic representation the SRSG appointed minority representatives to municipal assemblies.214 In the case of three predominantly Serb municipalities wholly appointed assemblies were created.215 The transfer of authority to new municipal assemblies depended on their attainment of several benchmarks, including financial accountability, a professional civil service and relations with the communities.216 Nonetheless, the attainment of those standards remained slow. The two main Albanian parties found it hard to work together constructively in local government,217 with the municipal civil service becoming politicised and reports of intimidation of public sector workers by the PDK.218 After three years, only four assemblies had an adequate number of functioning committees, a third showed increased politicisation in their civil service, two had

 Strohmeyer, note  above, -; UN Doc. S// ( December ), paras. .  UNMIK Regulations / and  ( December )  UN Doc. S// ( June ), para. ; UN Doc. S// ( September ), para. ; UN Doc. S// ( December ), para. .  Ibid. para. .  Ibid. paras.  and .  Ibid. para. .  UN Doc. S// ( March ), para. .  UN Doc. S// ( December ), paras. -; UN Doc. S// ( March ), para. .  UN Doc. S// ( June ), para. .  UN Doc. S// ( March ), para. ; UN Doc. S// ( March ), para. .

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Introduction

not agreed a budget, and three were gridlocked by political disagreement.219 Minority 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 staff.222 Official signs were bilingual in only six municipalities; thirteen 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 UNMIK’s 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-government, 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-five 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 PDK’s Bajram Rexhepi to be Prime Minister.233 Nine departments in the UNMIK administration were transformed into ten ministries under the new

              

UN Doc. S// ( June ), para. . UN Doc. S// ( April ), para. . UN Doc. S// ( January ), para. . UN Doc. S// ( October ), para. . UN Doc. S// ( June ), para. . UN Doc. S// ( April ), para. ; UN Doc. S// ( October ), para. . See also Judah, note,  above, . UN Doc. S// ( September ), para. . Article ., Constitutional Framework for Provisional Self-Government, UNMIK Regulation / ( May ). Article . Article . UN Doc. S// ( January ), para. . Ibid. Annex IV. Ibid. para. . UN Doc. S// ( September ), para. ; S// ( January ), para. . UN Doc. S// ( January ), para. .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

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 provisional 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 difficult, due to continuing politicisation, a relatively low salary, and for Serbs, opposition from political 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 significant number of ‘reserved powers’, in particular, relating to Kosovo’s external relations.239 The new institutions, however, began to challenge this authority, showing in the eyes of the UN: “an increasing desire 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 municipalities.242 Serbia was also in a transition to full democracy, with Milošević being forced to stand down from the Presidency of Yugoslavia in October 2000, after losing an election to Vojislav Koštunica. 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

     

UN Doc. S// ( April ), paras -. UN Doc. S// ( January ), para. . UN Doc. S// ( January ), paras -. UN Doc. S// ( October ), para. . Ibid. para. ; UN Doc. S// ( January ), para. . UN Doc. S// ( October ), para. . Other powers included the judiciary, police, railways, publically-owned property, socially-owned enterprises, civil security, mine clearance, the civil registry database, radio frequencies, civil aviation, the crossboundary transit of goods, registration of habitual residents, the housing and property directorate, fiscal matters and, together with KFOR, the KPC.  UN Doc. S// ( January ), para. . On the role of courts see Rebecca Everly, “Reviewing Governmental Acts of the United Nations in Kosovo,” German Law Journal  (): -.  UN Doc. S// ( July ), para. ; UN Doc. S// ( April ), para. ; UN Doc. S// ( January ), para. ; UN Doc. S// ( April ), para. .  UN Doc. S// ( June ), para. .

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Introduction

in Yugoslavia. However, following Milošević’s removal, Serbia could argue that those concerns no longer applied. 243 d

Benchmarks

The development of self-government and transfer of authority to provisional institutions 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 Kosovo’s status, an approach known as ‘standards before status’: 244 “[E]xistence of effective, representative and functioning institutions; enforcement of the rule of law; freedom of movement for all; respect for the right of all Kosovans to remain and return: development of a sound basis for a market economy; clarity of property title; normalized dialogue with Belgrade; and reduction and transformation of the Kosovo Protection Corps in line with its mandate.”245

Standards before status divided politicians according to their communities.246 Leading Albanians wanting independence openly criticised it. Some argued that the two should proceed simultaneously, others that the standards had already been met and independence could be called within months,247 while others inverted the formula: the resolution of status was the key to achieving standards.248 Serbs, on the other hand, opposed to Kosovo independence, rejected status negotiations before the standards had been achieved.249 The UN’s assessment in January 2003 was that: “Kosovo is still a considerable way from reaching the individual benchmarks and targets set out in the benchmarks matrix.”250 In December 2003 the new SRSG, Harri Holkeri sought to address concerns over standards by establishing a clear framework for achieving the benchmarks. The ‘Standards for Kosovo’ document251 proposed quarterly reviews of progress towards the standards and a comprehensive review in mid-

 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 Serbia’s 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  December , UN Doc. S/PV. ( December ), -.


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

2005.252 Kosovo Serbs, however, refused to participate in the further development of the standards, and they were joined by Serbia, which described them as a road map for Kosovo’s independence.253 e

The Ethnic Violence of 2004

At the start of 2004 Kosovo remained ethnically divided and poor. The rate of minority returns was low. Little progress was made in the official use of minority languages. Indeed, the Public Statistical Office had attempted to Albanianise the names of villages and municipalities. Belgrade-funded parallel institutions continued to pressure Serbs not to join provisional institutions, while a bus service to bring minorities to work in ministries in Pristina was sporadically subjected to stone throwing.254 Moreover, while UNMIK had made substantial progress developing political self-government for Kosovo, economic reform was much more hesitant. A structure for privatising Kosovo’s Socially-Owned Enterprises (SOEs) was only put in place in 2002. A limited privatisation programme started in February 2003 but was then delayed due to challenges from Serb interests and legal uncertainty.255 Unemployment stood at 60 and GDP at just 700 per capita.256 Economic growth, rather than being generated internally, was driven largely by foreign aid and remittances from the Albanian diaspora.257 On 15 and 16 March two incidents took place, which ignited ethnic tensions: a young Kosovo Serb was shot in a Pristina suburb and three Albanian boys were drowned in the Ibar River near Mitrovica: allegedly chased by Serbs. Th is coincided with a demonstration, in which 18,000 people marched to protest against the arrest of four former KLA fighters and KPC members for murder. Spontaneous rioting broke out, inflamed by biased media reporting, which quickly became organised and directed against minority communities. 19 people died (11 Albanians and 8 Serbs) and 954 were injured in the initial riots, as well as 184 injuries among international police, KPS and KFOR personnel. A few days later a Ghanaian UNMIK police officer and a KPS officer were killed by Albanian gunmen who fired on their patrol. 730 homes belonging to minorities were damaged or destroyed, as well as 36 Orthodox churches, monasteries and other religious and cultural sites.258 In a couple of days,  UN Doc. S// ( January ), para. ; UN Doc. S// ( October ), para. .  UN Doc. S// ( April ), para. .  UN Doc. S// ( January ), paras. -, , , , , .  Henry H. Perritt, “Economic Sustainability and Final Status for Kosovo,”  University of Pennsylvania Journal of International Economic Law (): ; Knoll, note  above, -.  UN Doc. S// ( January ), paras. -.  UN Doc. S// ( January ), para. .  UN Doc. S// ( April ), paras. -. Human Rights Watch, “Failure to Protect: Anti-Minority Violence in Kosovo, March ,” : (July ). See Judah, note  above, -.

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Introduction

4,100 minorities were displaced, more than the 3,664 who had returned the previous 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, condemnation from assemblies was often tempered with anti-Serb and anti-UNMIK declarations, nationalist displays, and sympathy for the rioters.260 f

The Eide Report

The riots threw into question the UN strategy. On 30 April the Secretary-General requested the Norwegian Ambassador to NATO, Kai Eide to review the situation in Kosovo. Eide’s report presented in August 2004 turned UNMIK’s underlying narrative of progress on its head. Its key theme was expressed in a complaint from an Albanian student, “you gave use freedom but not a future”.261 Instead of building stable self-government through benchmarks, it envisaged economic decline and growing political instability. Unemployment was already at 60-70 and economic prospects were described as “bleak”, as revenue from international aid and diaspora remittances diminished. Moreover, there was little that UNMIK could do. Further privatisation might provide benefits, at best, in the mid-term and the inefficient programme, so far, had become symbolic of the failure of the international administration.262 UNMIK had shown a dangerous disconnect from the population it governed: failing to read the mood, frustrations and impatience, and the ability of extremists to mobilize support for ethnic violence.263 The administration was seen as incompetent, bureaucratic and lacking the will or ability to move Kosovo forward or address peoples’ priorities.264 For Kosovo Albanians it had, “gone from opening the way to now standing in the way”,265 while for Kosovo Serbs it had been unable to secure their safe return after securing it for the Albanians. Moreover, the international presence was losing its security capacity as KFOR reduced its strength and the UNMIK police struggled to maintain theirs.266 The Report stressed that it was not rewarding violence.267 Yet it was framed in the context of likely future instability and the decreasing ability of the international presence to contain or defuse it. It recommended the disconnection of standards and status. Guiding Kosovo towards European standards was obviously a long-term  UN Doc. S// ( April ), para. .  Ibid. paras. -, -.  Report on the Situation in Kosovo, UN Doc. S// ( November ),  and , para .  Ibid. paras -.  Ibid. , para. .  Ibid. paras.  and .  Ibid. para. .  Ibid. para.   Ibid. para. .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

project, which would continue after final 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 effectively 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 community to, “stay the course in a coherent way”.272 Such international coherence, though, would ultimately prove an insurmountable challenge. 7

The Final Status Negotiations

The Secretary-General endorsed Eide’s proposals, but standards before status was retained pending the comprehensive review of standards in 2005, again conducted by Kai Eide. On 7 October 2005 Ambassador Eide sent his review to the Security Council. In his evaluation, progress was “mixed”,273 nonetheless, “the time has come to commence this [the final status] process.”274 In a presidential statement on 24 October, the Security Council agreed with Eide: “to move to the next phase of the political process.”275 It also revised the standards before status formula, recognising that standards would have to be achieved in parallel to a fi nal status, or ‘standards with status’. It also welcomed the initiative by the Secretary-General to appoint a Special Envoy on Kosovo’s future status, former Finnish President, Martti Ahtisaari, who had an office and secretariat based in Vienna (UNOSEK). Lastly, the Council recognised the basic structure of the final status process, which would be led by the Contact Group. The Contact Group, however, was itself divided on the issue between the US, France, Italy, Germany and the UK, and Russia with its special relationship with Serbia.276 On 7 October 2005 the Contact Group issued a declaration of ten Guiding Principles for the Settlement of the Status of Kosovo.277 These outlined similar goals to UNMIK: establishing a democratic Kosovo complying with European standards       

Ibid.  and , paras. - Ibid. para. . Ibid. , para. . Ibid. . Ibid. . UN Doc. S/PV. ( October ), . A Comprehensive Review of the Situation in Kosovo, UN Doc. S// ( October ), para. .  Presidential Statement, UN Doc. S/PV. ( October ), .  Weller, note  above, , , .  Guiding Principles of the Contact Group for a Settlement of the Status of Kosovo. Accessed  October . http://www.unosek.org/docref/ContactGroup- TenGuidingprinciplesforAhtisaari.pdf

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Introduction

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 specific dimensions on the settlement. There would be no return to Kosovo’s 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 separation of Serbia and Montenegro in June.280 On 30 September 2006, Serbia’s National Assembly adopted a new Constitution, narrowly endorsed in referendum, which offered Kosovo substantial autonomy within Serbia. However, whether this actually guaranteed autonomy, was questioned in an opinion by the Council of Europe’s 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 framework text with twelve annexes and was formally neutral on Kosovo’s status.283 Nonetheless, it gave Kosovo attributes normally associated with statehood, such as the

 Weller, note  above, .  Ibid. .  In  Yugoslavia (FRY) was reconstituted as the State Union of Serbia and Montenegro. Article  of the Constitution provided that either member state could withdraw from the union following a referendum after three years. Montenegro declared independence on  June  following a referendum on  May in which . of Montenegrins voted for separation on an . turnout. See, “Enter Montenegro,” The Economist,  May , -.  “[T]he Constitution itself does not at all guarantee substantial autonomy to Kosovo, for it entirely depends on the willingness of the National Assembly of the Republic of Serbia whether self-government will be realised or not.” European Commission for Democracy through Law (Venice Commission), Opinion on the Constitution of Serbia, Opinion No. /, - March , CDL-AD () , para. .  Contact Group Ministerial Statement,  September . Accessed  October . http://www.unosek.org/docref/--_-_CG_Ministerial_Statement_ NewYork.pdf.  Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S///Add. ( March ).


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

ability to conclude international agreements and join international organisations.284 While the Provisional Institutions endorsed it subject to some modifications, the Serbian National Assembly rejected it and in subsequent negotiations Serbia’s Prime Minister called for new negotiations based on substantive autonomy.285 On 26 March 2007 the proposals were forwarded to the Security Council, together with a separate recommendation from the Special Envoy. Ahtisaari’s assessment of the situation was blunt. The parties were unable to reach an agreement and the potential for negotiation had been exhausted. “No amount of additional talks, whatever the format”, he considered, would, “overcome this impasse.”286 The only viable option was independence, supervised for an initial period by the international community.287 Reintegration with Serbia was not a viable option. Following NATO’s intervention in response to the repression of the Milošević regime, Kosovo had been governed in complete separation from Serbia for eight years: a reality that could not be denied and was “irreversible”. A return to Serbian rule, “would not be acceptable to the overwhelming majority of the people of Kosovo”, and could not be achieved without, “violent opposition”. Autonomy, however notional, was, “simply not tenable.”288 Likewise continued international administration was unsustainable. UNMIK’s institutions had set in motion a dynamic political process reinforcing legitimate Kosovar expectations for ownership and responsibility in their affairs which they could not realise. Moreover, UNMIK had been unable to build a viable economy in the face of political uncertainty. This was source of instability and hindered integration with the EU. Only independence could provide the clarity and stability necessary for economic development.289 Ahtisaari’s prescription of independence was one that could be adopted by other secessionists, but he sought reassure states about their stability, by emphasising the distinctiveness of Kosovo as, “a unique case that demands a unique solution”. “It does not”, he considered, “create a precedent for other unresolved conflicts.” He cited three reasons stemming from SC Res. 1244: the denying of a role for Serbia in Kosovo’s government, placing the territory under temporary UN administration and a political process designed to determine its future: “The combination of these factors makes Kosovo’s circumstances extraordinary.”290 Despite presenting these recommendations in a separate document, which would allow the Security Council to adopt the Status Settlement Proposal, without a commitment to independence, a settlement proved impossible. Russia siding with Ser Article ().  Weller, note  above, -.  Report of the Special Envoy of the Secretary-General on Kosovo’s Future Status, UN Doc. S// ( March ), paras.  and .  Ibid. para. , -.  Ibid. paras.  and .  Ibid. paras.  and .  Ibid. para. .

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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 find a formula which would allow the Council to adopt the proposals, if not the recommendation of independence. Negotiations 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, reflected 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 achievements and legacy of the United Nations in Kosovo.”293 8

The Unilateral Declaration of Independence

On 17 February 2008, a special session of the Kosovo Assembly attended by the President, unanimously by 109 votes, adopted a unilateral Declaration of Independence. (Ten Serb members and one Gorani had boycotted the meeting). Despite its format, the Declaration was more than a strictly unilateral act, having been drafted with the assistance of Western governments.294 Its opening sentence sparked a legal debate about who exactly has declared independence: “We, the democratically elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state.”295 The Declaration did not base independence on the right of self-determination, though, it did imply it by stating that it reflected the will of the people.296 The Declaration also appealed to the idea that Kosovo was a, “special case… not a precedent.”297 Moreover, it endorsed supervised independence. The Declaration accepted the obligations under Ahtisaari’s Comprehensive Proposal and recommendations,298 and invited a continued international presence to supervise their implementation, as well as, the EU-led rule of law mission and a NATO-led military presence.299 Kosovo was recognised the same day by Costa Rica, the following day by the US, France, Albania, Turkey, the UK and Afghanistan, by Germany two days later and Italy the day after that. Over the next few weeks it was recognised by most European countries.300 However, after an initial burst of support, the pace of recognition

         

Weller, note  above, -. Ibid. -. UN Doc. S// ( December ), para. . See UN Doc. S// ( March ), para. . Article , Kosovo Declaration of Independence,  February , International Legal Materials  (): . Article , Declaration. Preamble, Declaration. Articles , , ,  and , Declaration. Article , Declaration. Accessed  October . http://www.kosovothanksyou.com


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

slowed,301 with a clear majority of countries not extending official recognition. It was also questionable to what extent Kosovo fulfi 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 significant implications for Kosovo’s self-government. Shortly after the Declaration, on 28 February, an International Steering Group, composed of European countries recognising Kosovo and the US, established an International Civilian Office (ICO) for Kosovo, headed by an International Civilian Representative (ICR). Pieter Feith, the European Union Special Representative for Kosovo took on this additional role.302 The ICR’s 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 officials.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 cooperation with Kosovo’s 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 reconfiguring UNMIK to perform a range of limited functions, including monitoring, reporting, facilitating Kosovo’s 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 EU’s rule of law mission, EULEX, taking on responsibilities 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 SRSG Lamberto Zannier: “slower than predicted”. S/PV. ( November ),   Press Statement, First Meeting of the International Steering Group (ISG) for Kosovo,  February, . See International Steering Group. Accessed  September . http:// www.ico-kos.org/ico/?id=.  Article (), Annex IX, Comprehensive Proposal for the Kosovo Status Settlement, S///Add. ( March ).  Judah, note  above, -; Stahn, note  above, .  On implications of the international presence see Colin Warbrick, “Kosovo: The Declaration of Independence,” International and Comparative Law Quarterly  (): ; Vidmar, note  above, -, .  See Statement of SRSG Lamberto Zannier to the Security Council, UN Doc. S/PV. ( July ), ; UN Doc. S// ( November ), para. .  UN Doc. S// ( June ), para. .  Ibid. paras. , .  Council Joint Action //CFSP,  February , Official Journal of the European Union L/ (). On the controversy surrounding its establishment see Erika de

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Introduction

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 Security Council on 26 November 2008.311 On 9 December, 1,045 EULEX police officers 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 staff of 510.313 9

The Advisory Opinion

Serbia launched a diplomatic offensive to prevent recognition of Kosovo. A key element was an Advisory Opinion from the ICJ on the legality of the Independence Declaration. On 8 October 2008, a Serbian draft was passed by the UN General Assembly, GA Res. 63/3, requesting an advisory opinion from the Court. The resolution was passed by 77 votes (which included states that had recognised Kosovo),314 with 6 against, and 74 abstentions, as well as, other states who refrained from voting.315 At the time of the request 48 countries recognised Kosovo.316 Serbia’s hope was that a negative opinion by the Court would discredit the declaration and stall recognition. The question posed to the Court was: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”317

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 considered that the Declaration did not violate international law. The Court’s examination 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 Establishment 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

a

General International Law

International law tends to be seen as neutral on secession.318 This hardly does justice to the clash of the principles of sovereignty and self-determination behind this position, but it does provide a political margin for states, which may not want to be unduly restricted in their response to the reality of a state disintegration. The essentially political nature of the formation of new states was recognised by the Court: “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 specific”320 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 effects 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 find that the declaration of independence itself was not unlawful, even if the secession (for the sake of argument) was. Within this narrow 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 different views were expressed by those taking part in the proceedings”, in other words, it lacked the necessary opinio juris for custom. “Similar differ-

 See, e.g., Peter Malanczuk, Akehurst’s Modern Introduction to International Law, th Edition (New York: Routledge, ), .  Kosovo Opinion, para. .  Ibid. para. .  Ibid. paras  and .  Ibid. paras. -.  See Written Statement of Austria,  April , para. ; Written Statement of Denmark,  April  para. .; Written Contribution of Kosovo,  April , para. .; But see criticism by Judge Simma, Declaration, Kosovo Opinion, para. . See also rejection by Serbia, Written Statement of Serbia,  April , paras. -.  Kosovo Opinion, para. .

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ences”, and thus no custom, also surrounded remedial secession and there was a, “a sharp difference 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 proceedings before the Court provide a wealth of ideas from states on this point. Nonetheless, they do also underline the Court’s position of fundamental disagreement between states. There was significant 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 European. A greater participation from Asia and Africa would most likely increase opposition to those concepts.

 Ibid. para .  See Judge Simma, Declaration, ibid. paras. -; Judge Sepulvéda-Amor, Separate Opinion, ibid. para. ; Judge Cançado 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 Statement of Norway,  April , para. ; Written Statement of Poland,  April , paras. .-., .; Written Statement of Slovenia,  April , ; Written Statement of Swtizerland,  April , paras. -. See also Judge Cançado Trindade, Separate Opinion, Kosovo Opinion, paras. -; Judge Yusuf, Separate Opinion, ibid. paras. -. See also K. William Watson, “When in the Course of Human Events: Kosovo’s Independence and the Law of Secession,” Tulane Journal of International and Comparative 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 independence.” 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

Were there legal principles that might prohibit a unilateral declaration of independence? The most likely candidate was territorial integrity. The Court, however, dismissed this. The scope of the principle of territorial integrity was confi ned to the sphere of relations between States and thus did not apply to non-state actors declaring independence.331 The Court’s 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 specifically in the context of self-determination.332 It passed over Re Secession of Quebec, which considered secession within a framework of territorial integrity.333 It even excluded its own finding in Western Sahara that territorial sovereignty could “affect” the application of self-determination.334 The ICJ did recognise instances when independence declarations were considered 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 illegality 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

 Kosovo Opinion, para. .  See Judge Cançado Trindade: “paragraph [()] of the U.N. Declaration of Principles has a direct bearing on the question put to the Court by the General Assembly, and should at least have been considered together with the paragraph that the Court saw fit to refer to.” Separate Opinion, ibid. para. .  “[I]nternational law… expects that the right to self-determination will be exercised by peoples within the framework of existing state and consistently with the maintenance of the territorial integrity of those states.” Reference re. Secession of Quebec []  Supreme Court Reports (Canada), para. .  Western Sahara (Advisory Opinion),  ICJ para.  ( October).  Kosovo Opinion, para. .  Ibid. para. .

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b

The Lex Specialis of Security Council Resolution 1244

The second area that the Court looked at was SC Res. 1244 and the specialised law, or lex specialis, it established for the international administration of Kosovo. This raised two issues: first, the scope of SC Res. 1244 and, second, whether the authors of the declaration had exceeded their powers. The first issue was whether the terms of SC Res. 1244 prohibited the Declaration of Independence. The Court considered that it did not. It highlighted three particular features of SC Res. 1244 to interpret its object and purpose. First, the international administration and security presence was an exceptional measure in response to the crisis of 1999. Second, the purposes of the administration were humanitarian: to stabilise Kosovo and re-establish public order by temporarily suspending the exercise of Serbia’s sovereignty and superseding its legal order. Third, it established a temporary regime without prejudice to agreement on its future status.337 The Court noted that where the Security Council had wanted to restrict options on a territorial settlement, it had specified conditions (e.g. in Cyprus), but here it had “remained silent”.338 Thus, SC Res. 1244 and regulations derived from it for Kosovo’s interim administration, and instruments which sought to determine Kosovo’s final status, like the Declaration of Independence, simply operated, “on a different level”.339 The second question was whether the institutions involved in the Declaration had exceeded their powers. The Declaration was, on the face of it, the work of two provisional institutions, the Kosovo Assembly and the Kosovo President. Nonetheless, the authors of the Declaration and a number of sympathetic states340 argued that it was not the work of the provisional institutions at all, but, “an act of the democratically-elected representatives of the people of Kosovo meeting as a constituent body to establish a new State”.341 This position was endorsed by the Court. It found that the authors of the Declaration did not act as one of the provisional institutions,

   

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. ; Written 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

but, “persons who acted in their capacity as representatives of the people of Kosovo outside the framework of the interim administration.”342 The Court’s assessment rested on three mains grounds. First, the text of the declaration 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 Official 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 challenged by individual judges,344 many of whom also questioned the wisdom of allowing individuals apparently to step outside a legal framework by an apparent rhetorical flourish.345 It is significant, though, that the ability of persons to escape from the legal framework in which they find 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 effect. This might have a significant 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 Kosovo’s 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 international administration, was recognised as being under the sovereignty of Yugoslavia (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 reflected in the ‘general international law’ part of the ICJ Opinion.  Kosovo Opinion, para. .  Ibid. para. .  See Judge Tomka, Declaration, Kosovo Opinion, paras. , ; Judge Bennouna, Dissenting Opinion, ibid. para. ; Judge Sepulvéda-Amor, Separate Opinion, ibid. para. ; Judge Yusuf, Separate Opinion, ibid. para. ; Judge Skotnikov, Dissenting Opinion, ibid. para. .  Judge Skotnikov, Dissenting Opinion, ibid. para. ; Judge Bennouna, ibid. Dissenting Opinion, para. . Judge Koroma, Dissenting Opinion, ibid. paras. -, .  Judge Simma: “the authors of the declaration of independence make reference to the ‘will of [their] people’... which is a fairly clear reference to their purported exercise of self-determination”. Declaration, ibid. para. .

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Introduction

Serbia’s sovereignty had been rendered ineffective. 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 independence; 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 exists in international law,347 as the ICJ appears to affi rm. However, there are specific objections relating to Kosovo. First, the initial response to Serbia’s oppression was not support for independence, but an autonomous international régime that lasted for over eight years.348 Second, Serbia changed its government and its political standards, 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 possibility 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 suffered by minorities in Kosovo, undermine the legitimacy of Kosovo’s 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 administration. This may not, in itself, be determinative. Similar administrations have ended according to a predetermined status. Thus, UNTAET facilitated East Timor’s transition to independence, while UNTAES assisted in Eastern Slavonia’s reintegration into Croatia. Kosovo, though, differed from both those administrations. The intense argument over the terms of a final status in SC Res. 1244 underline the ambiguity 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 final settlement. If inter See James Summers, Peoples and International Law: How Nationalism and Self-Determination 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-Determination, the Independence of Kosovo, and the Vocabulary of Peoplehood,” Leiden Journal of International Law  (): ; Rein Müllerson, “Precedents in the Mountains: On Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia,” 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 Kosovo’s Genesis upon Doctrines of International Law,”  German Law Journal (): .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

national territorial administration has analogies to trusteeship, its termination may correspondingly resemble decolonisation. There are strong similarities between trusteeship and the régime established in SC Res. 1244: to promote political and economic development, human rights and a progressive realisation of self-government. There was also a prioritisation of good government (standards) over national government (status). The international administration established institutions, according to its own standards, which then filled with local politicians, who used their position to expand their powers. The international presence secured considerable successes in reconstructing Kosovo and building democratic, multiethnic institutions. Nonetheless, there were limits and failures, in particular, on the economy, minority returns and a final status, which led to the UN being seen as an impediment to further political and economic development. With the departure of the international presence, the default position would not be reintegration with Serbia, despite its sovereignty, but de facto Kosovo independence, rather akin to the position of the Republic of China on Taiwan. Independence also offered the withdrawal strategy most likely to avoid an internal conflict, which would endanger international personnel and the multiethnic institutions that had been created. Serbia raised legitimate objections that this rewarded the threat of violence,351 but Serbia did not have personnel in the territory vulnerable to attack. These are primarily political considerations, but the International Court treated the Declaration of Independence as falling within a political margin. Analogies between international territorial administration and trusteeship do not mean that Kosovo has a legal right of self-determination, in the same way that a non-self-governing territory has. But then most of the decolonisation process arguably took place before a legal right to self-determination was established.352 Kosovo can be seen as something of a hybrid between secession and the termination of a very particular type of international territorial administration. An academic observation is that the situation in Kosovo is very distinctive, in some regards unique, but also with legal and historical parallels. However, the distinctiveness of Kosovo is not merely academic, but a fiercely debated argument. On one side, the authors of the declaration, Martti Ahtisaari and a number of states consider Kosovo to be sui generis, or a unique legal situation that does not create a precedent. On the other side, states have argued that Kosovo is not unique and sets a precedent.353 Both arguments relate to how the principles relating to secession should be read. There are various sui generis arguments with different elements, but common features are the repression of Albanians and the United Nations administration.354 Ser Serbia, UN Doc. S/PV. ( February ), .  The application of the principle of self-determination to non-self-governing territories was recognised by the International Court of Justice in . Namibia (Advisory Opinion),  ICJ para.  ( June).  Vietnam, UN Doc. S/PV. ( February ), ; Written Statement of Azerbaijan,  April , para. ; Written Statement of Bolivia,  April .  See Written Statement of Albania,  April , para. ; Written Statement of Denmark,  April , paras. .-.; Written Statement of Estonia,  April , para.

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Introduction

bia has criticised sui generis as an attempt to exempt Kosovo from international law,355 but the argument, and its component parts, could influence how that law is interpreted. 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-determination. 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 Kosovo’s 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 régimes, 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-

 

 

.; Written Statement of Finland,  April , paras. -; Written Statement of France,  April , para. .; Written Statement of Germany,  April , -; Statement of Ireland,  April , para. ; Written Statement of Japan,  April , -; Written Statement by Latvia,  April , ; Written Statement of Luxembourg,  March , paras. -; Written Statement of the Maldives,  April ; Written Statement of Netherlands,  April , para. .; Written Statement of Poland,  April , para. .; Written Statement by Slovenia,  April , ; Written Statement of United Kingdom,  April , paras. .-.. Serbia, S/PV. ( November ), . See also Written Statement of Argentina,  April , para. ; Written Statement by Cyprus,  April , para. . See International Commission of Jurists, Report on Legal Aspects of the Aaland Islands Question, League of Nations Official Journal, Special Supplement No.  (): -; Commission of Rapporteurs, The Aaland Islands Question, League of Nations Doc. B [C] //, April ,  and ; Frontier Dispute (Burkina Faso v. Mali),  ICJ , para.  ( December); Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): ; Reference re. Secession of Quebec []  Supreme Court Reports (Canada), paras. -. Serbia, UN Doc. S/PV. ( February ), . Jonathan I. Charney, “Self-Determination: Chechnya, Kosovo, and East Timor,” Vanderbilt Journal of Transnational Law  (): -; Bing Bing Jia, “The Independence of Kosovo: A Unique Case of Secession?” Chinese Journal of International Law  (): .


Chapter I, James Summers – Kosovo: From Yugoslav Province to Disputed Independence

al administration and trusteeship. 359 On the other hand, the precedent argument has a danger of being self-fulfilling. In particular, Russia, which described Kosovo’s independence, as a, “a very dangerous precedent”,360 subsequently used it, in part, as justification for its recognition of secession by South Ossetia and Abkhazia.361 Lastly, while the International Court of Justice, does not formally create precedent, its Opinion has set parameters for future international territorial administration. 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 termination being specified, with a clear reference to territorial integrity in the operative part of a Security Council resolution, preferably paragraph one. In this regard, Kosovo may create a precedent, which, in turn, could make it unique.

 See Ralph Wilde, “Representing International Territorial Administration: A Critique of Some Approaches,” European Journal of International Law  (): -; Wilde, note  above, ; Stahn, note  above, -.  Russia, UN Doc. S/PV. ( March ), .  Statement by the Ministry of Foreign Affairs of the Russian Federation,  August . Accessed  November . http://www.mid.ru/Brp_.nsf/arh/FFEDECFDD. Statement by President of Russia Dmitry Medvedev,  August . Accessed  January . http://www.mid.ru/brp_.nsf/eafabbcbb/aacccbb?OpenDocument.

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II. Kosovo’s Unilateral Declaration of Independence


Chapter 2

Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law KAIYAN H. KAIKOBAD

Foreword by Colin Warbrick

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 publication. 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 Assembly Accordance with International Law of the Unilateral Declaration of Independence 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 Kaiyan’s 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 paper is not as long as the one he would have produced. I have made occasional notes of some of my own differences with his positions and added some brief information about events after his draft was finished. I have put these as ‘[…CW]’. I have also attached a brief note on the Advisory Opinion as a postscript. I have not always been able to find Kaiyan’s references and have usually substituted ones of my own but I have not indicated these instances one by one. Kaiyan’s death was a great loss to the many international lawyers who knew him as a committed and reliable authority and as a good friend.

James Summers. (ed.), Kosovo: A Precedent? © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 55-85.


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1

Kosovo’s Unilateral Declaration of Independence

Brief Factual Provenance

Following unlawful armed action by NATO against the Federal Republic Yugoslavia between March and June 1999,1 the Security Council adopted Resolution 1244 on 10 June 1999 which established an international civil presence for the performance of, “basic administrative functions”, and for promoting, “the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo”. Kosovo was a territorial entity within Serbia, once an autonomous province within the Republic of Yugoslavia inhabited by about two million Albanian Kosovars, 100,000 Serbs and 100,000 other ethnic minorities including Roma, Ashkali and Turks.2 On 17 February 2008, the Kosovo Assembly3 adopted a resolution which declared Kosovo an independent and sovereign State and by doing so set in train a number of events, including the submission of a request by the General Assembly of the United Nations to the International Court of Justice for an advisory opinion on the legality of the Unilateral Declaration of Independence adopted by the Provisional Institutions of Self Government of Kosovo (PSIG).4 2

Salient Legal Problems

This short study will seek to discuss the salient legal problems arising from, or related to, this unilateral declaration of independence. The problems discussed below are those which are, in the first place, concerned with the issue of self-determination. This is very clearly of central importance to the entire conflict insofar as the putative statehood of Kosovo rests upon the allegedly lawful exercise of the right of selfdetermination. The second part is concerned with the doctrine of non-recognition, an issue arising out of the use of armed force by NATO forces and which wrested Kosovo away from the sovereign control exercised by the Republic of Yugoslavia/Serbia. The question examined here is whether or not the doctrine of non-recognition precludes states from recognising the entity claiming to be the independent and sov

 

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 Report, (Oxford: Oxford Scholarship, ); C. L. Sriram, O. Martin-Ortega and J. Herman, War, Conflict 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/ fi les//.pdf pp - and Written Pleadings of “The Authors of the Unilateral Declaration of Independence”. Accessed  October . www.icj-cij-org/docket/ fi 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: Kosovo’s Unilateral Declaration of Independence and International Law

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 effectively to create an independent state and, if this power does exist, then what constitutes its precise scope and effect. 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 off 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

a

Self-Determination and the Charter

This issue, as stated above, is of central importance insofar as Kosovo, quite simply, has claimed and exercised the right of self-determination.5 Before examining the legal implications of Kosovo’s action in this regard, it is appropriate briefly to examine the doctrine of self determination. First, as far as the meaning of self-determination is concerned, the definition, as it were, contained in the General Assembly’s Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States of 1970 will suffice.6 The first paragraph under the Principle of Equal Rights and Self-Determination of Peoples, provides as follows: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. 

[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 definition similar but not identical in substance and is explicitly a statement of international law; but the  Declaration is a refinement of the  definition contained in paragraph . See GA Res.  (XV), UN Doc. A/ RES/ ( December ). Generally on self-determination, see the Namibia Advisory Opinion,  ICJ  ( October); and the Western Sahara, Advisory Opinion,  ICJ  ( June).

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The four essential points which come out of this definition 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 definite sense of being a self-contained, cohesive group constituting an entity, no matter how small or big that entity may be.7 Although the definition is silent on this, it would be optimal in terms of international law if the peoples were in fact associated with an identified 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, including, 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 confirms 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 

  

See GA Res.  (XXV), UN Doc. A/RES/ ( December ), which stipulates that the small size of a colonial entity is no reason to delay the granting of independence to it. See also paragraph  of the Plan of Action Annex to GA Res. / on a Plan of Action for the Full Implementation of the  Declaration, UN Doc. A/RES// ( December ). There is, of course, always a critical mass in terms of territory and population, but that aspect of the matter is a question de minimis and need not be dwelt upon here. This is a form of individual or collective consultation and was adopted by the United Nations in the  dispute with Indonesia over West Irian: see generally Yearbook of the United Nations (): - and -; Kaiyan Kaikobad, “Self-Determination, Territorial Disputes and International Law: An Analysis of UN and State Practice,” Geopolitics and International Boundaries  (): -. See Stephen Ratner for a more critical view: “Drawing a Better Line: Uti Possidetis and the Borders of New States,” American Journal of International Law  (): -. GA Res.  (XV),  December . Western Sahara (Advisory Opinion),  ICJ  ( October). Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article e of the Charter, General Assembly Resolution  (XV), UN Doc. A/RES/ ( December ).


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

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 external interference. This would include notions not only negative in character, such as compulsion, coercion and duress, but also in principle all manner of positive inducements, including the promise of financial rewards and property benefits. 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, social 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 Communist 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 selfdetermination 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 first manifestation of the right as expressed by a non-self- governing territory is the one which, in actual fact, defines the very right itself, namely the sovereign independent State.14 In the second place, an act of selfdetermination 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 independence but not the right of self-determination. Similarly, by agreeing the Compact of Free Association with the United States, which came into effect 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 “emergence into any other political status freely determined by a people” constitutes one   





Western Sahara (Advisory Opinion),  ICJ , para.  ( October). See Kaikobad, note  above, -. [I should not put it quite like this – rather, the right of self-determination of peoples includes a right to independent statehood, if that is the will of the peoples of the relevant territory, as it almost always has been. CW] For the principles on the basis of which free association or integration takes place, see the Annex to GA Res.  (XV), UN Doc. A/RES/ ( December ): Principles VII, VIII and IX. [And, it should be noted, that the population become nationals of a state other than the previous colonial State (and may do, though not necessarily so, if the act of selfdetermination is against alien occupation. CW]

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of the modes of implementing the right of self determination by that people. It is this refinement which distinguishes the modes of implementing self determination in GA Resolutions 1514 and 1541 of 1960 from the 1970 Declaration. The Azores and Madeira were granted special constitutional status as autonomous regions of Portugal in the Portuguese constitution of 1976, the claim being that these arrangements were consistent with, “the historic aspirations of the people to autonomy”.17 It is probably unnecessary to underline that the legal right to self-determination is to be distinguished from the broader political principle of self-determination.18 In UN law and practice, self-determination applies to peoples under colonial domination, to the peoples of mandate and trust territories, to peoples under alien occupation and to peoples under a racially-discriminate, minority government. The prospect that these peoples may claim a right to independent statehood has led to the term ‘external’ self-determination being applied to these situations and they are to be distinguished from two other possibilities. One is the notion of ‘internal’ selfdetermination, deriving from common Article 1 of the International Covenants on Human Rights, with its implication of a continuing right of the peoples of a state to inclusive and responsive government (see below). The other, much more tentative from a legal point of view, is the claim of a post-colonial right to secession, i.e. external self-determination, sometimes called ‘remedial secession’, when the right of internal self-determination is not respected.19 b

The Juridical Status of Self-Determination

As far as the juridical status of self-determination is concerned, it is the case that there are at least five different ways of viewing this right. In the first place, self- determination is clearly an erga omnes right, a position endorsed by the International Court, the point being that it was a right which, if denied, concerned all members of the international community. Thus, in both the East Timor Case and the Palestinian Wall Advisory Opinion, the Court stated the right of peoples to self-determination is today a right erga omnes.20 Thus, there was no room for the arguments that the 

 



Thomas Benedikter, The World’s Working Autonomies (Dehli: Anthem Press, ), -. In the view of the United Kingdom, this covers also the situation where the peoples of a colonial territory (now called ‘Overseas Territories’ in UK constitutional law), say that they wish to retain its link with the existing colonial power, e.g. Falklands Islands, Gibraltar. Allen Buchanan, Justice, Legitimacy and Self-Determination: Moral Foundations for International Law (Oxford: Oxford University Press, ), -. Marc Weller, “Settling Self-determination Conflicts: Recent Developments,” European Journal of International Law  (): ; cf Peter Hiphold, “Self-determination in the st Century: Modern Perspectives on an Old Concept,” Israel Yearbook of Human Rights  (): . East Timor (Portugal v. Australia),  ICJ  ( June ); and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,  ICJ  ( July). To the extent that self-determination is a basic right of the human person, see also the Barcelona Traction Second Phase,  ICJ  ( February ).


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

frustration of the right of self-determination was a matter exclusively between the metropolitan power and the entity denied its independence or that the United Nations was not authorised to intervene in matters which were essentially within the domestic jurisdiction of member states, a restriction stipulated in Article 2(7). As Brownlie observed, “The present position is that self-determination is a legal principle, and that United Nations organs do not permit Article 2(7), to impede discussion and discussion when the principle is in issue.”21 It was on the strength of this erga omnes status that the United Nations, and particularly the General Assembly, could justifiably be concerned with self-determination as reflected in the very large number of resolutions adopted on this issue. Secondly, Article 1(2) states that one of the purposes of the United Nations is to develop friendly relations among nations on the basis of, “respect for the principle of equal rights and self-determination of peoples”. There are two aspects to this clause. First and foremost, this clause reinforced as early as possible in the Charter that the United Nations was committed to the idea that colonial rule over vast areas of Asia and Africa must as a principle be terminated albeit in an orderly fashion. This was in contrast with the failure of the Covenant of the League of Nations to provide such a commitment.22 The second aspect is that self-determination can be seen as a technique for fostering friendly relations among member states of the international community. Article 55 of the Charter repeats this by stipulating that, with a view to creating conditions of stability necessary for friendly relations among nations based on the respect for the principle of self-determination of peoples, the UN shall promote inter alia higher standards of living. The view taken by some scholars is that self-determination is thus limited by the purpose of developing friendly relations;23 that is if friendly relations would be jeopardised by implementing the right of self determination then that implementation  



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 Empires 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 Wilson’s ‘ideal of self-determination’. See Michael Akehurst, A Modern Introduction of International Law, Fourth edition, (London: Routledge, ), . For the mandates system, see Article  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 particular 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].

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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-determination 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 difficult 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 Political Rights; and for the International Covenant for Economic and Social and Cultural 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 particular importance because its realisation is an essential condition for the effective 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

In short, to deprive a peoples of the right of self-determination is to deprive it of one of the most basic of all human rights. Fourthly, there was once a long-standing question whether self-determination was a principle or merely a policy informing the conduct of member states.27 With respect to the latter position, it is clear that Article 73 stepped back from re-iterating the principle of self-determination where it needed most to be stated in a forthright and unqualified manner. This provision is the key part of the Declaration Regarding Non-Self-Governing Territories, in Chapter XI of the Charter, and, while there is no mention of self-determination, there is reference to the principle that the interests of the inhabitants are paramount and also reference to a sacred trust as an obligation to promote the well-being of the inhabitants but within the system of international peace and security. Nonetheless, as Cassese observed: “In short, the Charter kept

  



Generally see Malcolm Shaw, “Peoples, Territorialism and Boundaries,” European Journal of International Law  (): . Human Rights Committee, General Comment No. : The Right of Self-Determination of Peoples, Twenty-first Session,  March . There is considerable dispute about what exactly the common Articles  of the Covenants 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-Determination of Peoples: a Legal Reappraisal (Cambridge: Cambridge University Press, ), -. See generally Brownlie, note  above, -.


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

alive the colonial system, although it divided colonial peoples into two classes (nonself-governing territories and trust territories)...”28 There is little reason to dwell on this question any further because, as the International 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 Territories 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.

Finally, there is the issue whether self-determination, as a rule of law, is a rule of jus cogens, the implication being that, if it were, then no derogations from it would be permitted. This would mean that every entity recognisable as a ‘self’ (‘peoples’) would have an indefeasible right to self-determination. The view taken here is rather nuanced. In the first place, it could be argued that to the extent that it is a general doctrine of international law, every entity has a right in principle to decide for itself whether it wants to exercise any one aspect of the right of self-determination and this it could arguably be seen as a peremptory right from which no derogation is permitted.32 This is based on the view that any kind of rule which stands in opposition to the rule allowing peoples the right of self-determination is inconsistent with the concept of freedom and liberty of the peoples. Even so, this can only be true as a very broad general principle, because there are several qualifications to this and jus cogens rules are not subject to qualifications.33     



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-determination 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.]

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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 unqualified 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 applied 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 selfdetermination 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 suffices to state here that international peace and tranquillity are in the Charter higher goals than selfdetermination.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 powers 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 administering 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-determination in accordance with the Charter, and particularly its purposes and principles.

c

The Essential Requisites of Self-Determination

The following constitute objectively verifiable requisites for the exercise of the right of self determination: i.



A definite entity which qualifies as a unit of peoples, howsoever described in law or politics;

[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: Kosovo’s Unilateral Declaration of Independence and International Law

ii. iii.

iv.

v.

d

A definite claim, linkage or occupation of the peoples with a core tract or tracts of territory; A definite, pronounced wish for self-determination as described above in the various forms of self-determination (and which may, perhaps, now be formulated as a response to the deprivation of fundamental political and human rights);35 Serious, sustained and substantial evidence of the pronounced wish for self-determination as established or substantiated by way of plebiscite or some other process, preferably endorsed or supervised by the United Nations;36 Where the fulfi lment of the above conditions is satisfied, the exercise of the right is not inconsistent with other principles and purposes of the Charter of the United Nations 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 systematic 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 territory 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

The Case of Kosovo

The question of a right of self-determination of the peoples of Kosovo must take into account the following matters of law and fact: i.

 



Up to an including 16 February 2008, the territory of Kosovo was uncontestedly part of the Republic of Serbia (under the interim administration of organs of the Security Council created and empowered by Security Council resolution 1244, supported by a military force of (mainly) NATO States, also authorised by resolution 1244. There

Reference re. Secession of Quebec, International Legal Materials  (): , para. . GA Res.  (XI) approving the British Togoland-Ghana plebiscite, UN Doc. A/ RES/ ( December ); Northern Cameroons (Cameroon v. United Kingdom)  ICJ ( December); plebiscite endorsed by the General Assembly in Resolution  (XV), A/RES/ ( April ); and rejection by the General Assembly of the Djibouti plebiscite conducted by the French without UN supervision: GA Res.  (XXII), UN Doc. A/RES/ ( Dec. ). Further, see Badinter Commission (Arbitration Commission of the Peace Conference on Yugoslavia), Opinions Nos.  and , International Law Reports , , . [I find the way in which this (v.) is expressed problematic and I suspect that he would not have left this section in the form in which it is, without being able to be sure quite how it would have been amended. CW].

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ii.

iii.

iv.

v.

vi.

e

was no suggestion that Serbia had abandoned its title or was otherwise estopped from asserting it. The territory of Kosovo was of great historical significance to the Serbian people and formed an integral part of the idea of Serbian nationhood, by reason of its historical connotations and its continued significance to the Serbian Orthodox Church. 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 Milošević’s intervention in 1989 and associated changes in the formal status of Kosovo within the SFRY. There was an historic link between Albanian Kosovars and the territory of Kosovo, even if the demographic changes had altered the balance between Kosovars and Serbs there. In Yugoslavian constitutional terms and in Serbian political dialogue, 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 The Kosovars, though, did consider themselves a people (‘peoples’), entitled to independence 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 Serbia. 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 significance.

Kosovan Self-Determination and Other Rules of International Law

One might have reached the conclusion that the Kosovars were peoples with a prima facie right of self-determination.39 However, this putative right would appear to be  

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 Commission 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].


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inconsistent with the principles and purposes of the United Nations and with general international law, especially if it were to be exercised to create a new State of Kosovo against the wishes of Serbia. i.

ii.

iii.

iv.

v.

 



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 effect to any claim of statehood following from that unlawful act might have conflicted with the principle of non-recognition of changes brought about by force.40 The existing of a state of animosity, hostility and distrust between Kosovo and Serbia, which affected the stability of the whole region, would be perpetuated by the existence of a state of Kosovo, consequent upon the deprivation of Serbia’s title to its territory. 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 Slovakia; the region of Transdniestria in Moldova; the Karabakh mountain region between Armenia and Azerbaijan; and possibly Vojvodina in Serbia itself. Major power involvement had had decisive effects on the situation in Kosovo, not always 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 supporter 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 firm supporter of these enclaves and recognised them as states after the fighting in 2008). The prevalence of double standards on the status of secessionist 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 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 Kosovo’s 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 SecretaryGeneral on Kosovo’s future status, UN Doc. S// ( March ) which proposed ‘supervised independence’ for Kosovo and the Comprehensive Proposal for the Kosovo Status Settlement (The Ahtisaari Plan), UN Doc. S// Add. ( March ).

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situation a circumstance which, combined with its ethnic links, may make it difficult 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 Serbian 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 increments.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 confidence 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 identifying 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 situations 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 final 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 final solution to Kosovo’s 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 effect of the veto and is contrary to the law of the United Nations.

4

The Doctrine of Non-Recognition

a

The Meaning of Non-Recognition: Stimson Doctrine

Although closely related to recognition of states and governments, the doctrine of non-recognition is to be distinguished from them. Non-recognition may be a unilateral act or result from a decision of the Security Council. In the first case, it belongs to the law of state responsibility;45 in the second, it results from the discharge of the Council’s responsibility to maintain and restore international security and, if the Council acts under Chapter VII of the Charter, non-recognition may be an obliga  

Para . of the Ahtisaari Plan precluded union of Kosovo with any other State. The UDI does not make a specific commitment to the same effect. SC Res. , UN Doc. S/RES/ ( June ), para .  ICJ paras - ( June); ILC Articles on the Responsibility of States for Internationally Wrongful Acts , Article ().


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tion of states.46 Though non-recognition need not be confined to territorial disputes, it does largely feature there in response to changes brought about incompatibly with fundamental principles of international law, notably those prohibiting the use of force, securing the self-determination of peoples and protecting human rights from gross and systematic violations. The clearest examples are that states are obliged not to recognise creation of states or transfers of title to territory brought about by unlawful uses of force. The doctrine has its origins in the proposal of the US Secretary of State Henry Stimson in response to the Japanese invasion of China (Manchuria) in 1931-32.47 The American statement was the expression of a unilateral act of policy, though there lay behind it frustration at the breach of the Pact of Paris which might otherwise have gone unremarked upon. The Articles on State Responsibility posit an obligation of non-recognition on a serious breach of a peremptory norm of international law. This is not always taken as an essential criterion, although the exceptions are likely to turn on the mysteries of whether or not a particular norm is a ‘peremptory norm’ or whether a particular breach is ‘serious’. The Articles on State Responsibility purport, of course, to be a statement of customary international law but occasionally one can find an obligation of non-recognition in treaties.48 In the absence of specific treaty obligation, there is, of course, nothing to preclude a state from adopting its own policy of not recognising a state, the creation of which it regards as legally dubious. So, ‘non-recognition’ as a legal concept may be usefully distinguished from this exercise of discretion – it is a refusal to acknowledge an otherwise lawful situation because of a serious legal defect in how it was brought about because of an international legal obligation to do so – which might arise from treaty, under customary international law or because of a binding Security Council resolution.49 b

The Essential Elements of Non Recognition

The essential elements of the non-recognition obligation are: i. ii.

 

 

There has been a breach of a major fundamental principle of international law, but not necessarily of a jus cogens rule). 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 International 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].

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iii.

iv. v. vi.

c

The breach itself might have been the responsibility of a state, an international organisation, 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. The territorial régime must be created, perpetuated, maintained or sustained directly or indirectly by entities identified in (iii) above Non-recognition may be an individual act or response by other state(s) or follow upon a decision of an international organisation. A policy of non-recognition may be implemented by an international organisation with respect to matters which lie within its competence.

Breach of Principles of International Law50

Some of the breaches of international law which suffice to generate a non-recognition obligation are as follows: i The Prohibition of Aggression An early example is the creation of the ‘puppet state’ of Manchukuo (Manchuria) by Japan in 1932 and the reaction of the League of Nations and individual states, like the United States. Strictly, the wrongs here were breaches of the Covenant and the Pact of Paris. There was a mixed reaction to the Italian invasion and annexation of Abyssinia in 1935 but Italy later accepted the validity of all the acts of the Ethiopian authorities in exile back to 1935 in its Peace Treaty at the end of World War Two in 1945. In 1983, the Security Council called upon all states, “not to recognise any other Cypriot State other than the Republic of Cyprus”, following the declaration of Statehood by the ‘Turkish Republic of Northern Cyprus’ (TRNC) in 1983.51 The regime in northern Cyprus had been set up following the Turkish invasion of Cyprus in 1974, which had been condemned by the Security Council as being in breach of the 1960 Treaty of Guarantee to Cyprus.52 No state (other than Turkey) has recognised the TRNC and there has been a widespread refusal to take cogniscance of acts of the TRNC authorities. International organisations and their organs, like the EU and the Council of Europe, have followed similar policies.53 Following the invasion of Kuwait by Iraq in 1990 and the annexation of the territory of Kuwait, the Security Council, not acting explicitly under Chapter VII, decided that the annexation of Kuwait by Iraq was without legal effect and null and void and called upon states and interna-

   

[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/ ( August ). For example, the European Court of Human Rights, Loizidou v Turkey (Merits), [] No./, para. .


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tional organisations not to recognise the annexation directly or indirectly.54 The Security Council did not condemn Iraq’s invasion as aggression, although it recognised Kuwait’s 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 Jerusalem (its annexation and incorporation into Israel) and called upon states to accept this decision.56 ii The Right of Self-Determination The impact of violations of the right of self-determination on the status of territory through the operation non-recognition is difficult to compress into a single principle. In some cases, the willingness of the UN to deal with the territory of a people as the territory of a new state (in circumstances where it would not have done so, absent the application of a right of self-determination) amounts at the same time, of course, as the non-recognition of the title of the colonial state.57 In other cases, the impact of unlawful use of force seems to take as much prominence as the denial of self-determination where the territory of a people is occupied by a state other than the colonial power.58 Where the right of self-determination has not been properly complied with, the principle of non-recognition might apply to, say, the continuation by the colonial power over part of the territory. In the case of Mayotte, from which France did not withdraw on the independence of the Comoros Islands, France has vetoed Security Council resolutions seeking to confirm the title of Comoros to Mayotte. iii Protection against Gross and Flagrant Breaches of Human Rights It is sometimes said that systematic violations of human rights might put the title of a state to a part of its territory in jeopardy. The statement of the principle of territorial integrity in General Assembly Resolution 2625 – that no action is authorised which would interfere with, “the territorial integrity of a State… possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour” is used as the foundation for this claim, the argument going so far as to claim a right of ‘remedial secession’ as a consequence of the human rights     

SC Res. , UN Doc S/RES/ ( August ). E.g. Kuwait Airlines Corporation v Iraqi Airways Co. (No.) [] UKHL . SC Res. , UN Doc. S/RES/ ( August ). See also Legal Consequences of the Construction of a Wall in Palestinian Occupied Territory , ICJ paras. - ( July). For example, Equatorial Guinea, SC Res. , UN Doc. S/RES/ ( November ). SC Res.  (Indonesian occupation of East Timor), UN Doc. S/RES/ ( December ).

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violations and, of course, implying that the title to that part of its territory of the preceding 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 political 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 Council’s 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 effect and called upon all States not to recognise the Southern Rhodesian authorities or to have any diplomatic or other relations with it.59 d

Non-Recognition Practice beyond the Security Council

Most of the examples above have involved action by the Security Council and there has been little express reference to obligations of non-recognition under customary international law (though there would have been such an obligation in virtually all these instances). In some cases, organs without binding powers have invoked nonrecognition as an appropriate response for states and/or have used their procedural powers in a way similar to that which would have been required by the principle of non-recognition. In substantive terms, the most prominent example is the reaction of the General Assembly to the ‘homelands’ policy of the government of South Africa, designed to achieve the better implementation of the apartheid programme in South Africa itself.60 At a procedural level, the General Assembly has used its power over the credentials process to exclude delegations from certain aspects of its work. The credentials of the representatives of South Africa were not accepted in 1974 and South Africa was excluded from the work of the General Assembly.61 This







SC Res. , UN Doc. S/RES/ ( November ). The situation in Southern Rhodesia was doubly vulnerable – the UDI authorities were a racial minority under a constitution which entrenched the position of the minority and, at the same time, the actions of the authority subverted the right of self-determination of the people of Southern Rhodesia. GA Res. D (generally), UN Doc. A/RES/ ( November ) and /A (Transkei), UN Doc. A/RES// ( October ). The Security Council later supported the Assembly’s call to states not to recognise the Bantustans or have dealings with them. None did. The curtailment of South Africa’s participation was the result of a presidential ruling on the effect of the Credentials Committee to reject those provided by the government of South Africa. By no means all commentators accept the legality of his pronouncement,


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

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 understanding 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 constitutional 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-recognition 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 multiple questions which might arise in a single instance where the non-recognition principle is invoked. In contentious cases, the ICJ has decided cases involving allegations 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 finds itself the victim of acts of other states which recognise situations that it regards as unlawful (or











Malvina Halberstam, American Journal of International Law  ():  (discussing the possibility of the same approach against Israel). The possibilities of proceedings in national courts are not ruled out and it might be considered a more realistic prospect than proceedings at the international level, even if not so satisfactory in determining the issues of international law which would arise. For example, on the use of force, see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits),  ICJ ( June); on genocide see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),  ICJ ( February). Legality of Use of Force (Serbia and Montenegro v. Belgium),  ICJ ( December); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),  ICJ ( February); Application for Revision of the Judgment of  July  in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections,  ICJ ( July). See further, Crawford, note  above, -. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution ,  ICJ paras.- ( June). GA Res. /, UN Doc A/RES// ( October). See below.

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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, following 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 e

The Question of Obligation: Non-Recognition as a Legal Requirement

In principle, the proposition here is that if all the elements of non-recognition are established and especially where the breach of the relevant principle of international law is clear and uncontroversial, there is a duty to commit to a policy of non-recognition. The obligation to commit to a policy of non-recognition is based on one or more of the following: i.

ii. iii.

f

Principles of customary international law, especially where the impugned breach itself is that of a rule of jus cogens, such as the adoption or introduction of a system of apartheid; or unlawful use of force or aggression, such as Northern Cyprus. Treaty based obligations such as Article 11, Montevideo Convention 1933 or appropriation of part of the common heritage of mankind (Article 137(3), UNCLOS). Measures required by the Security Council, such as those following the Iraqi invasion of Kuwait.

The Situation in Kosovo68

In the light of the above, the following picture emerges. There was at the date of the unilateral declaration of independence, 17 February 2008, an identifiable territorial entity of ‘Kosovo’, de facto not under the control of Serbia, in which the Kosovar  

See Crawford, note  above, -. [Just a reminder that Professor Kaikobad was writing in the first part of , after the UDI and the reference by the General Assembly of the compatibility of the UDI with international law but before the publication of the advisory opinion. CW].


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

representatives claimed a right to statehood. There had been breaches of some major rules of international law which affected the legal and factual situation in Kosovo on this date. Armed force had been used against Yugoslavia by NATO states, contrary 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 future 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 Serbia’s continuing sovereignty over Kosovo in Resolution 1244 and its annex follow upon the resort to force against Serbia by the NATO states, as did Serbia’s 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 violations 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 offences within the jurisdiction of the Tribunal (not including genocide).69 Ordinarily (i.e. in the absence of Resolution 1244), the question of Kosovo’s statehood 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 effective their claim to be independent as against any contrary claim by the original sovereign. Participation by a foreign state in securing any effective control in the secessionist 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 influence the application of the ordinary law. Kosovo might say that it had a right of external self-determination (say, under the Badinter principles which applied 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 indeed 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 final solution (not expressly excluded by 1244 (of course!)). For Resolution 1244 might have been seen to have the directly opposite effect. So long as it remained in force, there could not be any final solution to the status of Kosovo. What is more, any organs and forces established or authorised by the  

Milutinovic, ICTY IT-- ( February ); Haradinaj, ICTY IT-- ( April ). This claim was made only as a political argument by the Kosovars.

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Security Council were entitled to act only in ways compatible with Resolution 1244. These bodies of limited competence included the Provisional Institutions of SelfGovernment 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 reiterate 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 Institutions73 (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 autonomous self-government for Kosovo and not for Statehood. The consequence is, to the extent that the Provisional Institutions (bodies with a degree of international personality) 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 advisory opinion, either because the facts which would go to establish statehood have been established in breach of Serbia’s 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 protecting this claim had no right in international law to do so (because the actions were incompatible with resolution 1244);75

This appearance may have been deceptive – see below. See UDI,  February , operative para.. [This was the point taken by ICJ in the Advisory Opinion,  ICJ paras. - ( July). CW]. [The ICJ decided that the UDI had not been issued by the PISG of Kosovo, in spite of their claim in the UDI to be the democratically elected leaders of the people of Kosovo, i.e. under elections conducted under the authority of UNMIK and, accordingly were not bound by the terms of Resolution  nor precluded by general international law, which bound only states, from making the (secessionist claim in) the UDI, Ibid. para.. CW]. [I would not add this qualification because the UDI, whether lawful or not, is not determinative of the claim to statehood of Kosovo and that is all the ICJ was asked to address in the request for the Advisory Opinion. Further, whatever the ICJ would have said, it would not be binding on any of the states involved. CW].


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

ii.

5

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 Role of the Security Council

The question next to be considered is what the role of the Security Council should be, given with respect to the UDI. a

The Functions and Powers of the Security Council: Chapter V, Article 24

The Security Council has wide but not unlimited powers, principally to maintain international peace and security. Its powers are found in the Charter and are, therefore, necessarily limited by it, however flexible the approach brought to the interpretation of the Charter.77 In the exercise of its powers, the Council is the agent of the member states, although it has the power, exceptional in universal international organisations, of imposing binding obligations on the member states when it acts under Chapter VII of the Charter. Furthermore, these obligations ‘prevail’ over other obligations of states arising under other international treaties (and probably those arising under customary international law).78 The Security Council determined that the situation in Kosovo constituted a threat to international peace and security (a necessary condition for its acting under Chapter VII) when it approved Resolution 1224 and the continuance in force of that resolution suggests that the Council remains of that view. The Council remains seised of the situation in Kosovo and there can be, then, no objection to the Council using even its greatest powers in the aftermath of the UDI but the political obstacles to it doing so appear to be insuperable for the moment (though they may change after the ICJ has delivered the Advisory Opinion). The Council has played a part in managing the exercise of the right of selfdetermination in difficult circumstances, such as Namibia and East Timor. If the Council were of one view, it would be able to make determinations about the final status arrangements for Kosovo, subject to caveat entered above about its power to deprive a member state of part of its territory. So, the Council could endorse and support a system of wide autonomy for Kosovo within Serbia, even without Serbia’s acquiescence (however useful that would be, though) and it might not even have the







The situation is in the same category as that of Biafra, when five States recognised the statehood of Biafra while Nigerian was still making efforts 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 (Oxford: 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 Simma, Second Edition, (Oxford: Oxford University Press, ), -, para..

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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: i.

ii.

iii.

iv.

6

Despite a wide construction of its terms, Article 24 cannot be interpreted to allow the Council to create an independent state where it would constitute serious disruption of the territorial integrity of a member state; Despite a wide construction of its terms, the Council cannot ignore the fact that it is obliged to act in accordance with the Purposes and Principles of the United Nations, and these include the sovereign equality of all member states, which includes the equal right to the protection of their territorial integrity; Although the General Assembly and the Security Council have been involved in various processes and facilitation of entities towards self-determination or self-government, each and every one of those cases have been concerned with either colonial entities, mandates or generally non-self-governing territories (Namibia, Palestine, Eritrea, Western Sahara);80 the Assembly and Council have never concerned themselves with ‘creating’ states out of post- or non-colonial/mandate/ trusteeship selfdetermination situations, Eritrea notwithstanding. Furthermore, if the Council were to endorse statehood for Kosovo, it would constitute legitimising a territorial situation resulting from an unlawful use of force.

Rights and Obligations of Relevant Bodies: The Governmental Authorities in Kosovo, UNMIK, the EU and the Security Council

The above issues have to be seen in the light of the rights and obligations of the four main authorities of control and administration. a

The Governmental Authorities in Kosovo

The main question of law with respect to the governmental authorities in Kosovo is whether, by unilaterally announcing the independence of Kosovo from Serbia, they have contravened any rule of international law: i.

 

In most cases, a declaration of independence would constitute a breach of constitutional and domestic law, but in the case of Yugoslavia, all the republics had a right of secession provided in the constitution and by analogy, Kosovo claims the same right, arguing that its internal status was manipulated illegally to turn it from a federal body to being part of Serbia. There is little dispute about the territorial limits of Kosovo. Furthermore, the Badinter Commission recognised the importance of selfdetermination in regulating the disintegration of the SFRY. Kosovo would say that the various elections in Kosovo and the uncontested support for the UDI were ample De Wet, note  above, -. Namibia, Palestine, Eritrea, Western Sahara, East Timor.


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

ii.

iii.

b

evidence of the wish of the peoples of Kosovo for independent statehood. That statehood, 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. Against this, it would be maintained that the Badinter Commission had considered Kosovo’s claim for independence and rejected it because of the insufficiency of its constitutional status in the SFRY. Indeed, the Commission had declared the process 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 postSFRY States. 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 substantial 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 Security Council sanction) are essential. Ahtisaari talked of the ‘international supervision’ of Kosovo’s independence, which, arguably, stopped short of statehood in the accepted sense.

The UN Interim Administration Mission in Kosovo

Similarly it is important to evaluate the legal implications of the Declaration in the context of the legal implications relative to UNMIK: i.

ii.

iii.

The first perambular paragraph of Resolution 1244 reaffirms to sovereignty of the Federal Republic of Yugoslavia over the territory of Kosovo. In addition, in discharging its main responsibilities, UNMIK was obliged to take, “full account of Annex 2”, of Resolution 1244, which recognised the continuing sovereignty of Serbia over Kosovo. UNMIK was authorised to provide an interim administration for Kosovo under which the people of Kosovo could enjoy substantial autonomy within the Federal Republic of Yugoslavia; and it was authorised to oversee the development of provisional democratic self-governing institutions for a normal and peaceful life: Resolution 1244, paragraph 10 and Annex 2, paragraph 5. Crucially, clear acknowledgment of the fact that autonomy and self-government in Kosovo was provisional, “pending a final settlement”, (a matter insisted upon by the Kosovar authorities) is provided by Resolution 1244 in paragraph 11(a).

In view of the above, it appears that: i.

By not preventing the declaration of independence and by tolerating the emergence of an independent Kosovo and its ‘sovereign’ governmental institutions, UNMIK is

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ii.

iii.

iv.

v.

c

in breach of its obligations to maintain the status quo in terms of sovereignty status in Kosovo; 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; The assumption of power by the Kosovo Assembly has seriously frustrated UNMIK’s 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 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 anachronism in Kosovo, unable to carry out its functions but with the Council unable to agree on its termination. UNMIK may well find itself in all sorts of difficulties if the International Court provides an opinion which states that the Declaration of Independence was/is unlawful in terms of international law. Although not bound by the opinion, the Security Council and its bodies can hardly be openly defiant and ignore the International Court’s pronouncements which have never been disrespected by the main bodies of the Organisation.

The Security Council

The situation currently existing has raised several points of concern in terms of the Council and the rules of international law: i UNMIK and the Security Council The Council vested certain responsibilities in UNMIK, chief of which was to establish interim provisional self government for Kosovo pending a final settlement. By failing to prevent to the Declaration of Independence by whatever means available to it or by not reacting to it with sufficient vigour, including perhaps calling for specific action from KFOR, UNMIK failed in its responsibilities to the Council as vested in it by Resolution 1244. ii The Federal Republic of Yugoslavia and the Security Council The Council was obliged to ensure that the territorial integrity of the Federal Republic of Yugoslavia was neither compromised nor prejudiced; it had reaffirmed the commitment given by all member states to respect the sovereignty and territorial integrity of the Federal Republic of Yugoslavia. Insofar as it agreed and recognised that the Republic of Serbia is the successor state to the Federal Republic of Yugoslavia, the Council has failed in its obligations to Serbia by not taking action, either through 

UN Doc. S// ( November ), para. .


Chapter II, Kaiyan H. Kaikobad – Another Frozen Conflict: Kosovo’s Unilateral Declaration of Independence and International Law

UNMIK or otherwise, to arrest the development of any situation which would result or has resulted in Kosovo effectively seceding from Serbia. iii Members of the UN and the Council The Council, by virtue of (i) and (ii) above, has failed in its duty to make sure that international peace and security are not prejudiced; but the emergence of a de facto independent or quasi-independent Kosovo has raised the possibility that in the future, tension, hostility and uncertainty will continue to worsen and cause threats to the peace to become more presing and more serious. Serbia’s determination to maintain its right over the territory of Kosovo has been demonstrated by the energy it put into marshalling support for the request by the General Assembly for an Advisory Opinion from the ICJ, Resolution 63/3 of 8 October 2008. Whatever the outcome, there is a risk that the Council has actively contributed to the creation of yet another ‘frozen conflict’. d

The European Union Rule of Law Mission

The authorities in Kosovo set great store by their relations with Europe, especially economic relations with the EU, looking ultimately to membership of the EU. At the same time, the members of the EU are not unanimous about their attitudes to Kosovo, several states saying that they will not recognise the independence of Kosovo. Kosovo-EU relations are likely to be complicated and it is against this possibly fraught background that EULEX, the EU law and justice mission to Kosovo, must operate. EULEX has responsibilities for policing, justice and customs necessitated by the emergence of new centres of powers, namely the Kosovo governmental institutions, but it operates under the overall authority of the United Nations, under a United Nations umbrella headed by the Special Representative of the SecretaryGeneral. EULEX is required regularly to submit reports to the Council.82 It is also to act in accordance with Resolution 1244. EULEX has no enforcement forces of its own and, like the Kosovo institutions themselves, finds the extension of its operations into the Serb-dominated areas of northern Kosovo difficult. EULEX’s activities will consolidate the position of the Kosovo authorities and it will have no difficulty in cooperating with them in most of Kosovo. Its very success, though, may make its work with Kosovo’s Serbs hard, undermine its relations with Serbia and, conceivably, make for trouble in its dealings with the Security Council. 7

Remedies Available to the Republic of Serbia

Serbia has always resisted the conclusion that the failure to get the Ahtisaari plan adopted (or some modified version of it) brought to the end the possibility of a peaceful and negotiated settlement of the status of Kosovo. It has urged the resumption of talks – but on the condition that Resolution 1244 remains in force and that its 

Secretary-General’s Report on UNMIK to Security Council, UN Doc. S// ( November ), paras. , , .

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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 position (though Serbia would doubtless reject a finding to the contrary as not binding upon it). Serbia has resisted suggestions that it should try to find an international forum 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 effect 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 find in the law the way to make a positive contribution to preventing the Kosovo situation joining the catalogue of frozen conflicts which hold so much latent dangers for international peace. Postscript: The Advisory Opinion by Colin Warbrick Professor Kaikobad was writing in advance of the delivery of the Advisory Opinion and without access to very substantial written and oral pleadings of the intervening States and the ‘UDI Authorities’.83 I have tried to put these proceedings to one side in developing this Chapter in order to stay as faithful as possible to its original ambitions. I attach this very short note about the Advisory Opinion, simply to round things off, since they took a course that Professor Kaikobad, along with many other international lawyers, did not anticipate. This note does not purport to be even a case-note but is simply a brief account of what the Opinion decides and a criticism of how that Opinion was expressed.84 On 8 October 2008, the General Assembly sought an advisory opinion from the ICJ on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?

 

The identity of those persons or which bodies had made the UDI was a highly controverted 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 represent 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 opinions 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: Kosovo’s Unilateral Declaration of Independence and International Law

The resolution was passed by 77 to 6 with 74 abstentions, following extensive debate. The proceedings before the Court attracted written interventions from 35 States and the ‘Authors of the Unilateral Declaration’ over two rounds, and 15 States and the ‘Authors of the UDI’ made oral presentations to the Court. By the time of the proceedings, the authors regarded themselves as the government of the state of Kosovo and many of the interveners had recognised Kosovo as a state.85 Neither in the debates in the General Assembly nor in the proceedings before the Court did any of the participants explicitly say that the Court had been asked the wrong question but this was, arguably, the implication of those states and the authors of the UDI which argued that the Declaration had not been made by the PISG at all but by an informal session of elected Kosovan legislators and high officials acting as the democratically elected representatives of the people of Kosovo. On 22 July 2010, the Court gave its opinion in a case it called, “Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo”, which, of course, is not the question the General Assembly had asked. By ten votes to four, it declared that: [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 Court’s finding, 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 officio. It ought to have said only that international law was quite indifferent 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. -.

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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). Kosovo’s status would have, as it still does, continue to be a concern of the Security Council, so long as Resolution 1244 remained in effect (and, to the extent that it was competent, to the General Assembly). General international law would have governed 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 general 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 régime 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 finding 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 Kosovo’s, 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 unilateral character. However, neither the norms on which, “egregious violations of international law”, are founded, nor the establishing of any violation is a matter on which the Council speaks with authority – but assuming coincidence of the Council’s 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 benefit 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 effect in circumstances 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: Kosovo’s Unilateral Declaration of Independence and International Law

thority, the Court found that, acting in their unofficial 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 organisations 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 figured prominently in the submissions to it. This was perhaps as well because more and/or different 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 insignificance of the finding 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 Court’s procedures for determining advisory opinions an option similar to that for preliminary hearings in contentious cases.91 It was clear after the first 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 efficiency 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 resolution  and the UDI operate on “different levels” [“different levels”?]. See Anthony Aust, “Advisory Opinions,” Journal of International Dispute Settlement  (): -. This confirms the reservations which some states expressed in the debate in the General Assembly of the request for the Advisory Opinion about the utility of doing so, but for quite different reasons than then imagined, e.g. United Kingdom, A//PV. ( October ),  and .

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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 Commission’s insistence on maintaining the existing borders of the federal republics 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 suffering 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 community’s response to the situation created by Milošević’s actions and NATO’s 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 unauthorised 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 benefitted considerably from the comments of Bernhard Knoll, Jason Beckett and Euan MacDonald; 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 International 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.


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emboldened politicians on both sides of the Atlantic in side-stepping the formal legal path in relation to Iraq in favour of their moral instincts. However, the focus of this chapter will not be on the consequences for resolving Kosovo’s final status of the likely illegality of the military intervention leading up to the international administration. While the proceedings before the ICJ focused upon the legality of the Declaration of Independence and whether a people of Kosovo have the right or not to self-determination and thereby the right, or not, to secede from Serbia, the issue of how Serbia may have lost its sovereignty over Kosovo has received little direct attention.3 If the outcome is, as seems likely, that Kosovo is on the path to independent statehood, international lawyers need to account for how, in the absence of Serbian consent, its sovereign ties to Serbia have been or will be severed. It is this aspect of the Kosovo question that this chapter will attempt to draw out. The decision to approach the question from this angle is grounded in the view that Security Council Resolution 1244 did not resolve the question of Kosovo’s final status. Although the meaning of the wording of the resolution was the subject of much comment before the ICJ, the view of this author is that it makes little sense to interpret the resolution as authorising independence in the absence of a negotiated outcome. Whether or not Resolution 1244 left an opening for independence in referring to the Rambouillet Accords or whether it in fact closed the door to a unilateral declaration of secession by reference to Serbia’s territorial integrity, it seems to require an almost wilful misreading of the emphasis on a negotiated conclusion to suggest that the failure of the Council to expressly forbid a unilateral outcome was in fact to authorise it.4 Moreover, one would need to accept that the ‘final status’ that the political process authorised by the resolution was intended to determine was in fact pre-determined by the Council, i.e. that ‘final status’ was actually code for independence. That such an interpretation of the resolution is untenable is suggested by both the present disagreement between members of the Security Council over what they had agreed to in Resolution 1244, as well as statements at the time of adoption as to what the Council was authorising, notably including the fact that not a single state spoke at the time of what a permanent solution may entail.5

 

A notable exception is Colin Warbrick, “Kosovo: The Declaration of Independence,” International and Comparative Law Quarterly  () -. For example, the view of the UK government as advanced by their representative to the Security Council in a document circulated prior to the SC debate entitled ‘Kosovo: Legal Questions’. In the document, the UK expresses a reading of Security Council resolutions very similar to its interpretation of Resolution  on Iraq – that which is not expressly precluded in the resolution is permitted – and there is nothing in Resolution  excluding independence. Discussed in Warbrick, note  above, . Such an interpretation is clearly based upon the Lotus principle, that restrictions on the independence of States cannot be presumed; The Lotus Case, , PCIJ, Series A, No. ,  ( September). For example, France’s statement at the time of adoption that simply: “the Security Council will remain in control”, S/PV. ( June ), .


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

If SC Resolution 1244 did not resolve the status of Kosovo, and given the absence 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 Serbia’s sovereign rights over the territory of Kosovo? 2

Sovereignty Lost?

In adjudicating upon the claims that came before it in the early 1990s, the Badinter 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 affirmed 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 Serbia’s 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 premature 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. 

 



As of November ,  states have recognised Kosovo as an independent and sovereign state; a list of recognising states is available at the Kosovan Ministry of Foreign Affairs website. Accessed  November . http://www.mfa-ks.net/ For links to the statements of recognition, see, accessed  September . http://www.kosovothanksyou.com. This is an unofficial website and not all the links function. See Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” European Journal of International Law  (): -. See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. ,  Janaury ;  International Law Reports , -; also, James Crawford, The Creation of States in International Law, Second Edition, (Cambridge: Cambridge University Press, ), . See statements of recognition at http://www.kosovothanksyou.com/. In addition, many countries stated their desire that their recognition of Kosovo should not negatively affect their relations with Serbia; see e.g. the Irish statement of recognition,  February . I am ignoring here the political or ‘factual’ arguments that were such a prominent feature of arguments before the ICJ; e.g. see the statements by Germany, France, Jordan and 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, Wednesday  December , CR /, para  (Germany); for Wednesday  December , CR /, para.  (France) and para.  (Jordan); and for Thursday , December , CR /, paras. ,  and  (UK).

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There are a number of paths one could take to make the case for a loss of sovereignty; three shall be considered here. The first is that of the purported right of selfdetermination belonging to the people of Kosovo. The second relates to the principle of effective control. The third concerns the powers of the Security Council. None, I shall argue, is particularly convincing. The section will finish by looking briefly at other grounds put forward in the proceedings before the Court. They, too, I will suggest, are unpersuasive. a

The Right to Self-Determination

The right of a people living in a territory to freely determine the legal and political status of that territory is firmly established in the international legal lexicon. It has been repeatedly reaffirmed since its original appearance in the UN Charter, in, inter alia, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,11 common Article 1 of the twin Covenants,12 the 1970 Declaration on Friendly Relations13 and various judgments of the International Court of Justice, and should be regarded, according to the ICJ, as an essential principle of international law, possessed of an erga omnes nature.14 This right allows a people to achieve selfdetermination in one of three ways, according to the Declaration on Friendly Relations: free association with a State, integration with a State or emergence as a sovereign independent State. The difficulty is in interpreting self-determination beyond the post-colonial context.15 It is broadly held that existing States are entitled to respect for their territorial integrity and political unity, and state practice has emphasised the consent of all parties concerned as a necessary condition for secession.16 Self-determination does not allow for a right of secession and self-determination claims are to be realised

 



 



GA Res.  (XV), UN Doc A/RES/ ( December ). Article  of the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, GA Res.  (XXV), UN Doc A/RES/ ( October ). See East Timor (Portugal v. Australia), Judgment,  ICJ , para.  ( June). Although see the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,  ICJ , paras. - ( July). E.g. the Security Council would not consider applications for UN membership from Lithuania, Estonia and Latvia following the collapse of the USSR until the Soviet Union agreed to recognise their independence. See Crawford, note  above, -.


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

instead through autonomy regimes and meaningful internal self-determination.17 As the Albanian population of Kosovo cannot (and do not) claim to be a colonised people, the right to self-determination as independence is thus not applicable. This is affirmed by the lack of recognition that attended the 1991 claim of self-determination; the only country to support it then was Albania.18 Where a case is made for Kosovan self-determination today, it is generally argued under the terms of the so-called ‘safeguard clause’. Under the 1970 Declaration, where a state fails to provide meaningful autonomy, where, in the words of the Declaration, states fail: “to conduct … themselves in compliance with the principle of equal rights and self-determination of peoples … [being] thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”,19 it has been argued that states may forfeit their right to respect for their territorial integrity.20 Thus, so the argument runs, where a state is grossly oppressive or refuses to allow for any form of internal self-determination, the principle of territorial integrity might be pushed aside and the right of a people to self-determination may justify unilateral secession. The argument for Kosovo falling under the safeguard clause is based upon a number of elements, including the reversal of autonomy in contravention of the Yugoslav Constitution in 1981, but is primarily claimed on the basis of the repressive actions of Milošević’s forces in 1998 and 1999 that led to the NATO intervention.21 However, where such a right exists at all, the threshold of abuses necessary to activate it is set extremely high. The second commission established in 1921 under the auspices of the League of Nations to consider the matter of the Aaland Islanders’ desire for separation from Sweden concluded that: “The separation of a minority from the State of which it forms a part … can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.”22 The Canadian Supreme Court appeared to raise the bar still further in the Quebec Secession case.23 While the Court    







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 different 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 Accordance 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,” Chicago-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.

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accepted that in situations of, “alien subjugation, domination or exploitation outside a colonial context [there is a]… clear case”, for external self-determination, it refused to reach any conclusion concerning whether prevention of a meaningful exercise of internal self-determination justified secession as a last resort.24 The Court’s hesitation reflected the much contested nature of any such provision under international law and (until the recent Kosovo proceedings before the ICJ) a lack of state practice to support such a secession right.25 Yet even where such a right can be said to exist, it is more than questionable whether it is applicable to Kosovo. One could reasonably have argued that the Milošević regime lacked the will to ensure ‘just and effective guarantees’, but it seems difficult to reach the same conclusion in respect of the democratic governments in office in Belgrade since. The abuses that supporters of this argument rely upon, while undoubtedly severe, are historical in nature; and there is little reason to suppose that should Kosovo accept the far-reaching autonomy and other guarantees on offer in place of independence, that these abuses will return.26 The Serbian government accepted without question the decision of the people of Montenegro in May 2007 to dissolve their bond, despite the obvious wish for a different outcome.27 Moreover, the smooth functioning of the central government’s relationship with the autonomous province of Voivodina attest to a Serbian regime able and willing to ensure effective guarantees for its Kosovar-Albanian citizens were Kosovo to form an autonomous province under Serbian sovereignty.28 While the authors of the Declaration have pointed to the recent amendments to the Serbian Constitution as threatening, even if one were to accept such a categorisation, such verbal provocation would fall far below the requirements of the safeguard clause.29 Nor, given the

 



 



Ibid. -, para. . See Crawford, note  above, -; and more recently, Peter Hilpold, “Self-Determination in the st Century: Modern Perspectives on an Old Concept,” Israeli Yearbook on Human Rights  (): . See, for example, Judge A. A. Cançado Trindade, Separate Opinion, Kosovo Opinion, para. ; available at http://www.icj-cij.org/docket/fi les//.pdf Moreover, the recent compromise by Serbia in the UN General Assembly in response to the ICJ Advisory 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 population 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 Unilateral 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?

evidence from Voivodina, would it constitute serious evidence of an unwillingness to respect an autonomous Kosovo. A further argument put forward by a number of states before the ICJ is that the severity of the abuses of the Kosovan-Albanian population under Milošević were such that, even though they accept that the likelihood of such abuses being repeated is nil, it is impossible to expect the victims to accept continuing Serbian sovereignty, however nominal in practice.30 This is a dangerous and unprecedented argument.31 This line of reasoning relies upon the ‘special’ or sui generic nature of the Kosovo claim,32 where even a cursory historical sweep suggests that there is little that is unique in suffering oppression at the hands of central authorities. Even where one limits the argument to abuses that are still within living memory (and thus discounts those collective ‘memories’ of oppression that have passed down the generations to form an integral part of a group’s identity), the sad nature of human politics ensures that there are more than enough examples to counter the notion of Kosovo being special in this regard.33 Indeed, within Kosovo itself, there exist those who have survived horrendous abuse at the hands of Kosovo Albanians in the wake of NATO intervention who, on such reasoning, would have an equal claim to self-determination.34 The peace and security that is the prime purpose of the international order, and which many suggest is the underlying justification for Kosovo’s independence, would arguably not be well-served by accepting claims to self-determination based upon historical abuse, no matter how traumatised the survivors. It is for good reason that such an argument runs counter to the growing practice and study of







 

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 Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Wednesday  December , CR / , para. . This argument was accepted by Judge Cançado Trindade, note  above. Despite the abuse and mass killing of Kurds in the north of Iraq, the territorial integrity of Iraq has been repeatedly affi rmed by the Security Council whenever it has taken action 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 specific and unique.” 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, 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 population comprised of other groups, such as the Roma, have suffered terrible abuse and continue to suffer 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  (), .

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transitional justice and to the UN-sponsored reconciliation efforts within societies that have torn themselves apart.35 It seems, then, that there would be no solid basis for viewing the people of Kosovo as entitled to self-determination, neither in possessing the right to self-determination and nor in the context of the abuses that motivated NATO action under the terms of the so-called safeguard clause. Accepting the understanding that historical abuses, no matter how severe, could lead to a forfeiture of sovereignty would arguably be to stretch the boundaries of international law beyond its current position and would be to set a dangerous precedent, despite the many protestations of the unique nature of the Kosovo problem. Yet if the actions of Serbia have not created a people of Kosovo with a right to independence, could Serbian inaction have cost it the province? b

Loss of Effective Control

The second possible basis for the severance of Serbia’s territorial rights by means of a loss of sovereignty concerns the principle of effectiveness.36 As is well known, in order for a state to claim legal title to a particular portion of territory it needs to be able to demonstrate a certain degree of control over it. In the Island of Palmas Case, Arbitrator Huber concluded that sovereignty over territory is constituted by a constant series of actions – commensurate with the particular portion of the globe at issue – to guarantee a state’s own inviolability, the rights of other states and their nationals’ rights under international law.37 The doctrine of effective control is further reflected in the third of the four criteria for statehood laid down in the Montevideo Convention (1933), that of effective government.38 If the fact of sovereignty lies in its performance, where a state cannot over a period of some (considerable) time exercise effective control, it can be assumed – at least in theory – to lose its legal title to the portion of territory in question. In such a situation a state may be held to possess dominium but lack the public law aspect of sovereignty, namely imperium.39 



 



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 Reflections,” Third World Quarterly  (): . Although the doctrine of effective control was not mentioned specifically 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 defined territory, a population, effective government and the ability to enter into relations with other States – have long been held to reflect customary 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?

For the past decade, effective control over the territory of Kosovo has been exercised not by Serbia but by an international administration guaranteed by the NATOled KFOR force. Although effective control in principle refers to the influence of other states in undermining effective control, the international administration in Kosovo is arguably of such a far-reaching nature that it could be understood as severing 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 financial 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 flag and all symbols of Serbia with UN regalia; it controlled the borders, issued identity documents and entered into agreements with States.41 Serbia’s 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 degree 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 nonself-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 effective control, if any, over daily life in Kosovo. This last point – that of a lack





 

Shaw, “Territory in International Law,” Netherlands Yearbook of International Law  (): . See also Martin Loughlin, “Ten Tenets of Sovereignty,” in Sovereignty in Transition, ed. Neil Walker (Oxford: Hart Publishing, ), the second tenet being that, “political relationships do not derive from property relationships”, -. The first condition of statehood is not simply independence, but independence from any other State (see David J. Harris, Cases and Materials on International Law, Fifth Edition (London: Sweet and Maxwell, , ). Similarly, effective control, strictly speaking, arguably refers less to the ability to assert one’s authority than the ability to assert one’s authority to the exclusion of all other States. (Island of Palmas Case, note  above). See Constitutional Framework for Provisional Self-Government in Kosovo, UNMIK REG// ( May ). Accessed  September . http://www.unmikonline.org/ See also Bernhard Knoll, “Legitimacy and UN-Administration of Territory,” German Law Journal  (): . See Constitutional Framework For Provisional Self-Government, UNMIK/REG// ( May ). Crawford asserts that territories that have been governed in such a way so as to create in effect non-self-governing territories may constitute a special category to which selfdetermination applies. As possible examples for this category, he cites Kosovo, Bangladesh and perhaps Eritrea. See Crawford, note  above, .

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of effective control in the months following the Declaration – featured in a number of submissions before the Court.44 While effective control is not always persuasive in determining where sovereignty lies – from the moment of its unilateral declaration of independence in November 1965 until the fall of the minority regime in 1979, Ian Smith’s government of Southern Rhodesia exercised effective control over the territory to the exclusion of all other powers and yet failed to gain recognition as a state45 – the doctrine of effective control and its relationship to title to territory has been undermined in recent years, most especially in the region of the Balkans. Recognition has been awarded to entities in the region that could not at the time be understood as having achieved effective control over the territory claimed and which, to some considerable extent in the case of one of those states, still cannot be seen as having achieved it. While the premature recognition of Croatia and Bosnia-Herzegovina in 1992 and 1993 respectively reflected the anxious desire of the European community to shore up these entities and not a legal judgement about whether or not they had met the Montevideo criteria, the rush to recognise nonetheless reflected, as with the recognition of Congo,46 the recognition of the legitimacy of their claims by the Badinter Commission as well as the extreme extenuating circumstances of the Yugoslav war.47 However, there is no agreement that Kosovo possesses a legitimate right to exercise sovereign governmental authority, nor can the circumstances be compared to the dire outlook for the former Yugoslav republics at the height of the Yugoslav war. Moreover, to accept that it would indeed be possible for an international administration to cause Serbia to lose title would be unprecedented. Nowhere has an international administration been known to sever what was previously a well-established title. Similar situations, such as the administration of East Timor by the UN prior to independence, are misleading because East Timor was illegally occupied by Indonesia following the Portuguese withdrawal; its independence was arguably one of the last cases of colonial self-determination. And the most analogous situation,









This is reflected 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 SelfGovernance of Kosovo, Verbatim Record, Thursday  December , CR /, para. . See SC Res. , UN Doc. S/RES/ ( November ), condemning the, “illegal racist 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?

that concerning the UN administration of Eastern Slavonia, Baranja and Western Sirmium, resulted in the ‘return’ of title to the parent state.48 Yet, what if we were to assume that UN administration had created a non-selfgoverning territory of Kosovo, with all the attendant consequences for the application of self-determination? There are a number of negative implications to recognising that de facto separation as a result of the intervention of international administration can have de jure consequences. Where de facto separation is accepted as having been sufficient to cut the cord of sovereign title, the international community will effectively have presented Serbia with a no-win situation: Serbia’s failure to accept the presence of UNMIK would have been read as unwillingness to recognise the autonomous status of Kosovo and thus as strengthening the demand of Kosovar Albanians for independence, while recognition of the (temporary) presence of an international administration would amount to acquiescence in the transfer of title. To accept such an argument would be to suggest that the only way for Serbia to continue to assert its title would have been the use of force against the international administration, contrary to SC Resolution 1244, and thus to its obligations under the UN Charter. Indeed recognising that the de facto separation of Kosovo from Serbia by the presence of an international administration was possible, and had indeed occurred, would render the multiple pronouncements in the preamble of Resolution 1244 on the inviolability of Serbian territorial integrity and political unity meaningless. Such guarantees would thus be little comfort to other governments faced with a similar determination by the Security Council of the need for international administration. There is thus a further, practical, reason for resisting an interpretation that suggests that international administration itself can be a source of sovereign severance, and that is that such an outcome would make it highly unlikely that the international community would be trusted in the future to administer a contested territory neutrally and without prejudice to its final status. Despite the proclamations of Kosovo as a special case, it seems reasonable to suggest that states would fear the precedent that Kosovo would set when making the decision about whether to accept or indeed actively resist a Security Council-mandated international administration. Nor could they be expected to trust the pronouncements as to their territorial integrity in any resolution. The ability of the UN authorities to perform a task that has come to be seen as vital – particularly given the direction that the international community has taken with the so-called responsibility to protect49 – would therefore undoubtedly be harmed by such an outcome in Kosovo, regardless of whether the situation is claimed as sui generic or not. 



The Security Council established the UN Transitional Administration of Eastern Slavonia, Baranja and Western Sirmium (UNTAES) with SC Res.  (). UNTAES comprised a military and civilian component, and in addition to de-militarising the area, it provided policing, public services and organised the re-settlement of refugees. Its mandate ended on  January , when control was handed back to Croatia. See Crawford, note  above, -. See the  World Summit Outcome Document, September , , UN Doc. A//L., paras. -.

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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 Council 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 international 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 effective control could lead to a loss of sovereignty in this case. Whether the presence of UNMIK created of Kosovo a non-self-governing territory, and thereby an entity entitled to the exercise of self-determination, is difficult to determine at this stage. Certainly if Serbia can lose title because of a loss of effective control as a consequence of international intervention, it is difficult to see how Kosovo can claim effective control with the Security Council remaining actively seized of the situation and the continuing level of control by international institutions. Moreover, the presence of the international administration in the case of Kosovo was mandated by a Security Council resolution that effectively gave guarantees as to the territorial integrity of Serbia until agreement on the final 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 final 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 NATO’s intervention or Resolution  will determine whether one sees the use of illegal military force as affecting Kosovan independence. 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 nonrecognition as in the case of illegal annexation of territory.” Ibid. . The refusal to recognise the Turkish Republic of Northern Cyprus has been justified 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 () reflect the widespread unwillingness to allow the use of force to affect title.


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

a negotiated solution, Resolution 1244 continues to be the authoritative statement on the status of Kosovo. Thus, where the continuing stalemate as a result of deadlocked negotiations threatens international peace and security, as supporters of independence have alleged, then it is arguably for the Security Council – already seized of the matter – to determine the next steps to address the alleged threat. c

The Security Council

If arguments about a loss of sovereignty on the above grounds are unconvincing, a legal basis for terminating Serbia’s sovereign rights may lie within the powers of the Security Council. While the Security Council has thus far responded to neither the Ahtisaari Plan nor the Declaration of Independence, and, given the deadlock in the Council any decisive response is unlikely, it is nonetheless worth considering whether the ability to sever title falls within the powers of the Security Council, i.e. whether, where one disagrees with the assessment here that Resolution 1244 does not authorise independence, or should they be so minded in a future resolution, the Security Council could in any case make a decisive intervention that went beyond the collective recognition of its individual member States. Chapter VII of the UN Charter provides the UN Security Council with powers to act in respect of threats to the peace, breaches of the peace and acts of aggression.53 Under Article 39, it is for the Security Council itself to establish when such a situation exists and what measures are necessary to maintain or restore international peace and security. Chapter VII does not, however, expressly grant the Security Council the authority to alter the territorial borders of a State without its consent. This power could be inferred, however, from the wording of Article 41. In conferring upon the Council the authority to take the measures it deems necessary to give effect to its decisions, Article 41 grants the Council exceptionally broad powers in the fulfi lment of its duty to maintain international peace and security, stopping short of the use of force.54 Further, the doctrine of implied powers, elucidated by the ICJ in reference to the extent of the scope of authority of UN organs, determines that such organs: “must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”55 It could be argued that, where necessary for the maintenance of peace and security, the Security Council is so empowered to transfer title without the consent of all concerned.







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 System,” in The Role of Law in International Politics, ed. Michael Byers (Oxford: Oxford University Press, ), -. According to the ICTY’s 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).

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The Council has certainly used Article 41 to give effect to decisions taken in pursuit of international peace and security that have had far-reaching effects upon sovereign rights. It has done so, for example, with regard to declaring illegal territorial 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 occasions, has pushed aside the principle of territorial integrity, by altering territorial boundaries and/or in granting independence to a contested territory, all in furtherance of international peace and security. For example, the implementation of the General Assembly’s 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 security. 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 firm 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 Fitzmaurice’s concern reflects the original understanding that the Security Council was accorded its powers on the condition that it confine its actions to short-term measures to remove a threat to international peace and security; thus, definitive settlements were to be left to the sovereign parties concerned or to be dealt with by the Council under 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     

SC Res. , UN Doc. S/RES/ ( November ); SC Res. , UN Doc. S/RES/ ( November ). GA Res. , UN Doc. A/RES/ ( November ); SC Res. , UN Doc. S/RES/ ( March ). SC Res. , UN Doc. S/RES/ ( April ). Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion,  ICJ  ( June). The Charter of the United Nations. A Commentary, eds. Bruno Simma et al. Second Edition, (Oxford: Oxford University Press, ), -.


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

terminating its sovereign rights without its consent are compatible with this and other provisions of international law, such as uti possidetis, is questionable. Moreover, 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 classified as a special case, almost certainly affect both the general scope and nature of Security Council powers. Whether or not it is now accepted practice that the Security Council has extended 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 manner 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 justifications 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 anticipated violent reaction from a disappointed and impatient Kosovar-Albanian majority. 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, Wednesday  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 influential 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 ). Accessed  September . http://www.crisisgroup.org/. 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. .

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dated international mission. In addition, arguing, as some states have done,64 that the uncertainty caused by a lack of finality over Kosovo’s status hinders development efforts within the territory and thereby constitutes a threat to regional stability 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, furthermore, 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 borders permanently without the consent of the states concerned, and this author’s suspicion 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 final status for Kosovo constitutes a threat to international peace and security of such magnitude that granting independence in contravention of Serbia’s sovereignty would be proportionate. d

Other Grounds: The Action or Inaction of UN Bodies or Representatives

In brief, other arguments that can and have been put forward to explain how Serbia may have lost its sovereign rights over Kosovo include the recommendation by the former Finnish President, Martti Ahtisaari, that independence was the only feasible outcome of the deadlocked negotiations;66 as well as the inaction of various UN bodies, such as the Security Council, or the alleged support of the Secretary-General.67 None of these provide a serious argument for how sovereign rights might be severed. 

 



See, for example, the statement by the US representative, Harold Koh, that independence 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, Tuesday  December , CR /, para. . For the need for Security Council measures to be proportional, see Charter Commentary, 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 Accordance 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?

The lack of condemnation of the Security Council, whether because of political deadlock or for any other reason, cannot reasonably be read as authorising independence, where one does not already hold that Resolution 1244 permits (or indeed mandates, as some States have suggested) independence. The simple fact of inaction surely cannot be grounds, as the UK appeared to argue,68 for a permissive reading of the last available Council resolution on a given subject; there seems to be no end to what could be read into resolutions by this method.69 Moreover, such a view would appear, as suggested by Spain before the Court, to conflict with the express rules of the UN Charter concerning the adoption of decisions by the Security Council: Article 27 of the Charter requires that decisions of the Security Council be made by affirmative vote. Similarly, the lack of condemnation by the Secretary-General and his stated neutrality in the wake of the Declaration of Independence cannot be read as constituting his official support for independence, whatever his personal support for the Ahtisaari Plan may be. More importantly, the Secretary-General is an administrative officer and is simply not empowered to alter territorial borders and terminate the sovereign rights of the states that are the members of the organisation he fronts. Under the terms of Resolution 1244, the Secretary-General has received delegated powers from the Security Council to establish and manage a UN civilian administration to the end of the goals laid down by the Council; these powers are wide-ranging, and include the power to choose a Special Representative, who shall, in turn, be empowered to control the civilian presence in Kosovo and take all measures to work towards establishing institutions that afford the people of Kosovo substantial autonomy and self-government. Moreover, in the circumstance of a lack of instructions from the Council on how to proceed, the Secretary-General can reasonably assume a measure of implied powers that enable him to carry out the Council’s existing mandate.70 Yet, it is highly unlikely that his implied powers could include the termination of a state’s sovereign rights; moreover, in this particular case, any consideration of the extent of the Secretary-General’s powers takes us back to the wording and intention of the Security Council in Resolution 1244. As with the Secretary-General, his Special Representative’s powers are delegated by the Security Council. As such, the recommendations of former President Ahtisaari, as contained in the Ahtisaari Plan, for the future of Kosovo cannot be 





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. . Appearing for Cyprus, Vaughan Lowe remarked in regard to the allegedly permissive silence 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 fit to ensure the fulfi lment of the Council’s existing mandate. Warbrick, note  above, .

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considered binding upon the parties concerned unless, again, one interprets the wording of Resolution 1244 as authorising the Secretary-General to play a determining role in the final status talks. For the reasons given at the outset of this paper – notably the emphasis on a negotiated outcome that respected both Serbian territorial integrity and meaningful self-government for Kosovo – it seems wilful to read Resolution 1244 as determining that final 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 Advisory 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 nonaction 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 Serbia’s territorial integrity. These recognising states believe that Kosovo is sovereign or is certainly on the path towards it.73 If Serbia’s sovereign rights cannot be severed by the presence of an international administration and the consequent loss of effective 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 Kosovo’s 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 emergence of those current members of the international community did the Declaration of Independence respect the territorial integrity of the parent state.74 This process –    

 ICJ , para.  ( June). See Security Council debate UN Doc. S/PV.  ( February ). See Warbrick’s illuminating discussion on this point in relation to Sweden’s declaration of recognition. Warbrick, note  above, -. 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. .


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

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 assertion 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 selfdeclaration 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 insufficient to constitute an entity as sovereign. While sovereignty must indeed be claimed – as the selfdeclaration 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









Martin Loughlin and Neil Walker, “Introduction,” in The Paradox of Constitutionalism. Constituent Power and Constitutional Form, eds. Martin Loughlin and Neil Walker (Oxford: Oxford University Press, ), . See Hans Lindahl, “Recognition as Domination: Constitutionalism, Reciprocity and the Problem of Singularity,” Europe’s Constitutional Mosaic, eds. Neil Walker, Stephen Tierney and Jo Shaw (Oxford: Hart Publishing, ). Also see 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, ) for consideration of the Quebec and Scottish claims as bounded within their respective constitutional orders, -. For the notion of sovereignty as an ‘institutional fact’ bridging the ‘is’ and the ‘ought’, see Wouter G. Werner and Jaap H. De Wilde, “The Endurance of Sovereignty,” European Journal of International Relations  (): . Also, for the understanding of sovereignty as, somewhat paraphrased, the claim as such, see Neil Walker, “Late Sovereignty in the European Union,” in Sovereignty in Transition, ed. Neil Walker (Oxford: Hart, ). For one of the best examples of sovereignty as an on-going speech-act performance, see the speech that Shakespeare gives Richard II that begins: “I give this heavy weight from off my head…” This monologue is remarkable in that in seeming to renounce his claim to the throne Richard is in fact laying claim to it by stressing the institutional facts that identify him as King (the crown, the sceptre, the anointing etc.), not least the fact that only the sovereign can renounce his throne. Richard II (Act , Scene ).

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this necessity of performance – imperium – that is reflected in the doctrine of effective control. For a claim to resonate both internally and externally, it must take some type of institutional shape sufficient to be persuasive: the constituent power must become constituted order. As Walker notes, sovereignty is ultimately, “about a plausible and reasonably effective claim to ultimate authority”.79 For a claim to be plausible it must therefore be able to make good on its claim to a degree sufficient to be persuasive.80 It is to this level or degree of plausibility that international law reacts, i.e. it judges the would-be new state on the performance of its claim and not the mere assertion of it. This is reflected in the pattern of recognition of ex-post facto assertions of sovereignty.81 International law inevitably follows the facts on the ground. The self-conscious claim to and performance of sovereignty, then, is sufficient to sever a previous sovereign’s rights over a territory. Despite the relational and contingent nature of sovereignty, it has a totalizing logic at its core. While a sovereign claim can only ever aspire to absolutism and while in practice different legal orders co-exist and, indeed, co-operate to achieve common aims, the hegemonic nature of sovereignty entails that a claimant to ultimate ordering authority cannot recognise any other such claim. In the zero-sum sovereign game of statehood, the performance of sovereignty by one will cut the sovereign ties of the former claimant, regardless of whether the latter consents. While so much of the above is obvious, it does not tell us whether Kosovo has in fact attained sovereignty as defi ned above. As has been suggested, the legitimacy aspect – the ability of a claim to resonate with those in whose name it is made – is, although vital, insufficient in and of itself to make a claim to sovereignty plausible. A degree of capacity, in order to make good on the hegemonic aspect of the claim, is an integral part of sovereignty. While the provincial institutions have claimed sovereignty and that claim appears to resonate strongly with the majority of the population, and while the claim has taken an institutional form of sorts, it is suggested that the claim has not yet achieved the degree of effectiveness to make the claim plausible. The continued dominating presence of the international community within Kosovo and the unlikelihood of the institutions of the provincial authority exercising effective control in the near future – whether over issues of law and order, in relation to the legislative process or concerning the economy – suggests that the

 



Walker, note  above, -. For the argument that this is the minimum threshold, i.e. a group becomes self-constituting because it can articulate a collective voice (although notably not thereby selfconstituted), see Morag Goodwin, The Romani Claim to Non-Territorial Nationhood: Taking Legitimacy-Based Claims Seriously in International Law, EUI thesis defended Florence, April . For example, the widespread recognition of Bangladesh in  following its secession from Pakistan. Warbrick has noted that the protestations of Serbia are similar to those of Pakistan at the time of the widespread recognition of Bangladeshi independence. Warbrick, note  above, .


Chapter 3, Moorag Goodwin – From Province to Protectorate to State: Sovereignty Lost, Sovereignty Gained?

performance of sovereignty to date – despite the existence of the pomp and circumstance of independence – is too shallow to be a plausible claim to hegemony.82 This lack of effectiveness in the claim to Kosovan independence is arguably reflected in many of the responding declarations of recognition. As Warbrick’s 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 Kosovo’s 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 international community. Such an understanding of Kosovo’s 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 effective control, where a state is so totally dependent upon the willingness of external actors to finance and assist with all the functions of the State, the understanding by which effective control is equivalent to independence is rendered defunct. Where the assessment of effective 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 undermined. 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 Kosovo’s 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 suggests that at some point in the not too distant future, Serbia’s sovereign rights will be sufficiently compromised de facto by the performance of Kosovan independence that it will have little choice but to recognise the loss de jure.85

  



This is of course equally true of Bosnia-Herzegovina. However, as suggested above, Bosnia-Herzegovina gained recognition for reasons other than effective control. Warbrick, note  above, . Similarly, the Hungarian statement recognises an internationally supervised independence; Canada recognised Kosovo as being in transition to full independence; and the UK and Norway appear to suggest that recognition is dependent upon the assurances given concerning minorities. Accessed  September . http://www.kosovothanksyou.com For discussion on Sweden’s statement see Warbrick, note  above. The discussions in the General Assembly at the beginning of September in response to the ICJ’s Opinion suggest that Serbia is slowly recognising the workings of this process. See meeting records for plenary discussion, UN Doc A// ( September ). Also, see BBC news, “UN urges direct talks between Serbia and Kosovo,”  September . Accessed  September . http://www.bbc.co.uk/news/world-europe-. The BBC reporter in Belgrade reports that Serbia’s decision to back down in the face of EU pressure suggests that the Serbian government has in effect acknowledged that Kosovo is a battle it cannot win.

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Conclusion

Back in 2002 in relation to NATO’s 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 doing, 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 sufficiently well to terminate Serbia’s 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 political 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 ‘anything goes’ attitude – a willingness to argue anything for any price. Rather, as Koskenniemi 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 convincing. 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 ability 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 Ethics in International Law,” Modern Law Review  (): . Martti Koskenniemi, From Apology to Utopia. The Structure of International Law Argument, 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 international 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 process and the possibilities for Kosovo’s 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. 2

From the Ottoman Empire to the Dissolution of Yugoslavia

The case of Kosovo and its final status are closely related to the balance between the principle of self-determination and the principles of sovereignty and territorial integrity. In this historical overview of the position of Albanians within Yugoslavia, it is very important to explain the will and the right of Kosovo Albanian population to self-determination and statehood. The position of Kosovo Albanians (Albanians currently compose more than 90 of Kosovo population)1 since its incorporation 

Statistics after the Second World War show that population in Kosovo fluctuated 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.


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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 Woodrow Wilson. Yugoslavia did not exist at any time in the history before that as a territory 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 five 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 Yugoslavia. Before that, the region was, since ancient times, inhabited by Illyrian tribes, the descendants of whom are today’s Albanians.2 People living in territories comprising Yugoslavia were distinguished by different 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 millet. 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 different administrative divisions called vilayetes (provinces) within the empire.4 In this administrative division the Kosovo vilayet was created as an autonomous province within the Ottoman Empire which encompassed the territory of today’s 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

 

the remaining  comprising Serbs, Montenegrins, Roma etc. According to official Yugoslav statistics, despite the expulsions of many Albanians between the two World Wars and the first two decades after the Second World War, mostly to Turkey, the percentage of Albanians increased, due to other groups leaving Kosovo for more prosperous opportunities in other republics. Th is was a feature common to other poor regions of Yugoslavia, such as Bosnia and Herzegovina. Another relevant factor was the higher birth rates among Albanians than others. See Noel Malcolm, Kosovo: A Short History (New York: New York University Press, ), - Ibid. -. For further reading on the Albanians and their history see Edwin Jacques, Shqiptarët: Historia e Popullit Shiqiptar Nga Lashtësia Në Ditët e Sotme (Tirana: McFarlands and Company, Inc. Publishers, ). Skender Anamali & Kristaq Prifti, Historia e Popullit Shqiptar (Tirana, Albanian Academy of Sciences and Arts, ), -. Noel Malcolm, note  above, -. See also Liman Rushiti, Ndarja Territoriale Dhe Rregullimi Administrativ i Kosovës (Pristina: Institute of History, ), -


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

(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 difficult for them to define 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 autonomous 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 today’s 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’ irredentist ambitions, Albanians proceeded with plans for national self-determination and independence. This culminated on 10 June 1878 with the formation of the Prizren 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, regardless 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 unification of all four vilayetes into one independent Albanian state. Initially the League of Prizren, thinking that their interests would be better defended within Ottoman 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 comprised of all Albanian inhabited lands; military service for Albanians to be confined within Albania in normal times; establishment of national schools to develop na 

Rushiti, note  above,  Anamali and Prifti, note  above, -. Gjergj Kastrioti-Skenderbeu, a son of the noble Gjon Kastrioti, lord of middle Albania, was born in . He was abducted in his early years and raised under a military education in the Ottoman Empire and converted to Islam. He become later one of the best fighter leaders fighting for the Ottoman Empire in Asia, Africa, South Europe until he decided to desert it and return to Albania to fight against the occupying Ottoman Empire. Ibid. -. John Arthur Ransome Marriot, The Eastern Question: An Historical Study in European Diplomacy (Oxford: Clarendon Press, ), -.

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tional education in the Albanian language in Latin script; control over finances that would effect the vilayet. Acknowledging that the Ottoman Empire would certainly fall, the Albanians quickly moved within the year for total independence and creation of an Albanian state encompassing Albanian inhabited lands.8 However, following the defeat of the Ottoman Empire in the Russian-Ottoman war of 1877, Serbia, 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 confirmed at the Congress of Berlin of 1878.9 The voice of the League of Prizren, represented through a memorandum 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 today’s Kosovo still remained within the Ottoman Empire. With the beginning of the Balkan wars in 1913 Serbia advanced further into the territories of northern Albania, including territories of today’s Kosovo, causing mass casualties 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 recognized 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     

Iljaz Rexha, Lidhja e Prizrenit në Dokumentet Osmane (Pristina: Kosovo Institute of History, ), . According to Western statistics, ,-, families fled to Albanian territories still within Ottoman Empire. See Malcolm, note  above, . Ibid. . Carnegie Endowment, Report (), , quoted in ibid. . Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, ), . John R. Lampe, Yugoslavia as History: Twice There was a Country (Cambridge: Cambridge University Press, ), -. The Kingdom of Serbs, Croats and Slovenes was established in December , based on the Corfu Declaration and Belgrade Proclama-


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

goslavia was an artificial 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-Hungary, 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 Secretary 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 different violations of the Declaration 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 different 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 individuals who refused to abandon their land or to assimilate and Serbianize.17 Projects against Albanians in Kosovo were proposed by leading Serb intellectuals, even openly urging the use of expulsion techniques deployed against Jews in Nazi Germany and Soviet methods of deportation. Vasa Čubrilović 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 Serbia’s 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 Christopher Bennett, Yugoslavia’s 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 represent 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 Affairs in Belgrade, DASIF Beograd, Fond DNZ . DI. secr //.

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also urged state officials to use physical and psychological means to pressure Albanians to leave.18 Čubrilović was later appointed as Head of Serbian Academy of Science and Arts. To achieve expulsion, Kingdom of Yugoslavia signed a secret agreement 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 officially 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 first conference from 31 December 1943 and 1-2 January 1944 in Bujan it declared in a resolution that it would join efforts 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 People’s Assembly of Serbia voted for the annexation of Kosovo.22 The Constitution of Yugoslavia of 1946 recognized Albanians as a national minority. However, their position until late 1960’s remained poor during the period in office of Aleksandar Ranković, Yugoslavia’s Minister of Interior Affairs. During this time, plans against Albanians, drafted during the Kingdom of Yugoslavia era, were being implemented. Forty thousand Albanian families were forced to leave for Turkey which represented approximately 200 thousand people.23 In the late 1960’s Ranković’s apparatus was dismantled. This would enable the Albanians 

    

Vasa Čubrilović was a member of the club ‘Mlada Bosna’ that projected the assassination of Archduke Franc Ferdinand. In his writings Cubrilovic states that, “if we suppose that gradual evacuation of Albanians during our colonization process is not efficient, then we left with only one option – massive expulsion of them… at times when Germany 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 London: Yale University Press, ), . Tim Judah, Kosovo: War and Revenge (New Haven: Yale University Press, ), -. Malcolm, note  above, -. Sami Repishti, “Rezoluta e Bujanit  Janar : Nje Analizë,” Studime Historike (): . Weller, note  above, . Judah, note  above, -.


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

to publicly express their needs, thus organizing massive demonstrations in 1968 demanding 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 Constitution in 1974. The new constitution granted Kosovo the status of autonomous province, with clearly defined 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 territorial integrity of Kosovo, autonomy in judiciary, finance, 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 diversification.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 redefine 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, Slobodan Milošević, 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 People’s Army. Centralization of military command was completed  

  



Peter R. Prifti, Confrontation in Kosovo: The Albanian-Serb Struggle - (New York: Eastern European Monographs, ), . Kurtesh Salihu, Lindja, Zhvillimi Dhe Aspektet e Autonomitetit te Krahinës Socialiste Atutonome të Kosovës në Jugosllavinë Socialiste (Pristina: University of Prishtina, ), . See also Besfort Rrecaj, Kosovo’s Right to Self-Determination and Statehood (Pristina: College Victory, ), -. See Constitution of the Socialist Federal Republic of Yugoslavia . Muenzel, note  above, . Serbs claimed that the creation of Kosovo and Voijvodina as autonomous provinces during Tito’s leadership was a means to weaken the Serb influence in Yugoslavia. Weller, note  above, -. Malcolm, note  above, -.

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by the end of 1980, while Kosovo was stripped of its control of territorial defence by 1985. The first Serbian constitutional amendments were proposed in 1988. This culminated in 1989 when the Belgrade regime began to abolish Kosovo’s 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 3 The Dissolution of Yugoslavia and a Case for Self-Determination Kosovo’s political elite was determined to seek peaceful means to achieve self-determination. However, the human rights situation was deteriorating. Oppression such as killings, unlawful jailing, and tortures were committed while Albanians were purged out of their jobs and many of them were forced to leave the country.31 In March and April of 1989 Albanians demonstrated against abolition of autonomy in Kosovo in response 100 Albanians were killed and thousands of them were jailed out of which 200 were kept in solitary confinement for months without the right to attorney. At the beginning of 1990 demonstrations continued and a further 14 demonstrators were killed.32 In April 1989 the Serbian Assembly approved a special law on labour relations which required all workers in public institutions to approve Serbian authority over Kosovo if they wish to keep their jobs. As a result of this 80,000 Albanians were purged from their jobs due to their refusal to accept this.33 Peaceful efforts by the Albanian leadership were leading nowhere. As Serbia was engaged in a war with Croatia and Bosnia and Herzegovina (briefly with Slovenia), the international community was focused on those issues. Macedonia also became a great concern for regional peace and security mainly because a potential conflict there could easily drag neighbouring countries into it, due to the ethnic composition of the country.34 In this process Serbia had two scenarios in its mind. In the first scenario they wanted to control whole Yugoslavia, but in case of a dissolution they had second scenario using principle of national self-determination in a bid to create the greater Serbia with the Serbian minority population living in other republics having the right to chose to join Serbia. The same scenario, though, would not be applied to Albanians.35     



Weller, note  above, . Ibid. -. Malcolm, note  above, -. Ibid. . According to the Macedonian census of : .  of the population are declared as Macedonians and .  of the population are declared as Albanians. The rest are Turks, Rhomas, Vlachs, Serb Bosniaks etc. See Census of Population, Households and Dwellings in the Republic of Macedonia, : Final Data (Skopje: Republic of Macedonia State Statistical Office, May ). Enver Hasani, Self-determination, Territorial Integrity and International Stability: The Case of Yugoslavia (Vienna: National Defence Academy, Institute for Peace Support and Conflict Management, ), -.


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

As expected Slovenia, Croatia and Bosnia and Herzegovina declared their independence in 1990 and 1991, respectively. Kosovo followed in the same steps with a declaration of independence, confirmed 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 different diplomatic methods, at the beginning supporting the territorial integrity of Yugoslavia, urging the parties to redefine their relations within the State. Efforts to establish a confederation, 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 consideration the Serbs living in these republics with special arrangements, such as a special constitutional status or autonomy, while ignoring the Albanian situation in Kosovo.39 A special arbitration commission was set up by the conference, chaired by Robert 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 first opinion, 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 fi 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     

See Malcolm, note  above, . Weller, note  above, . Carole Rogel, The Break Up of Yugoslavia and the War in Bosnia (Westport: Greenwood Press, ), -. See EC Declaration on Yugoslavia,  September , also the Carrington Draft Provisions for a Convention,  October  and  November . See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): , para. . Ramё Buja, Çёshtja e Kosovёs dhe Shkatёrrimi i Jugosllavisё (Pristina: AAB University, ), .

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tance of Kosovo allowed international community to comfortably deny Albanian demands.42 Following applications to the Commission by Slovenia, Croatia, Bosnia and Herzegovina and Macedonia, the Commission stated in its opinions No. 643 and 744 that Macedonia and Slovenia, respectively, satisfied the EC guidelines for independence. With regards to Croatia, the Commission in its Opinion No. 545 considered that Croatia met the conditions for recognition but that there were shortcomings in the constitutional safeguards for Serbian minority and its special status as foreseen in the draft convention of 4 November 1991. Thus, Croatia was urged to make appropriate constitutional arrangements, which it did on 8 May 1992. Following these constitutional amendments, the Commission commented that, “the amended version creates restrictions on the autonomy accorded to areas with special status and that it satisfies international law requirements regarding the protection of minorities”.46 The situation of Bosnia and Herzegovina was more complicated because of its ethnic composition, of which 44 were Muslims, 31 Serbs and 17 Croats and 5 others.47 The Bosniak and Croat representatives in the Bosnian Parliament managed to push through a declaration of sovereignty including a right to secession on 15 October 1991 without participation representatives of Serbian minority, who then moved to form a parallel Assembly of the Serb People of Bosnia and Herzegovina on 24 October 1991.48 The declaration of Bosnian parliament was considered not viable by the Commission for meeting the criteria for independence stating that, “Serbian members of the Presidency did not associate themselves with the Socialist Republic of Bosnia and Herzegovina declarations and undertakings; noting that the Serbian people of Bosnia and Herzegovina voted for a common Yugoslav state”.49 Bosnia organized a referendum to be held on 29 February and 1 March 1992 but still failed to attract Serbian population to vote. However, a referendum on independence took place, in which 63 of the electorate participated, with 99.4 voting for the independence.50 Based on the referendums outcome, the Bosnian government and its collec-

        

See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , paras.  and . See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para. . See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para. . See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , paras. -. See Comments on Croatia’s Constitutional Law of  December ,  July . R. Craig Nation, War in the Balkans, - (Pennsylvania: Strategic Studies Institute, August ), . Ibid. -. Bosnian Serb leader Radovan Karadzic called this declaration as a “road to hell”, where, “the Muslim nation may disappear all together”. See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , paras. -. Nation, note  above, -.


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

tive presidency led by Alija Izetbegovic declared independence on 27 March 1992. It was soon followed by recognition from EC countries and the US.51 In Bosnia and Herzegovina the conflict continued until the agreement brokered by US special envoy Richard Holbrooke in Dayton in 1995 and the creation of the Bosnia and Herzegovina confederation where the Serbs created their own entity Republika Srpska as an equal partner with the Bosniak and Croat Federation.52 Bosnian Serbs gained an entity that did not exist at any time during the history of Yugoslavia. However, as Kosovan Albanians were pursuing their rights in a peaceful manner, the international community overlooked them, dealing only with grave issues like the Bosnian war, where tens of thousands of people died in genocidal acts such as the Srebrenica massacre.53 Being left out of the process, Albanians concluded that a commitment to a peaceful movement under the leadership of Ibrahim Rugova, was not the best way to pursue self-determination for Kosovo. Albanians perceived the creation of the Republika Srpska alongside the Bosnian Muslim-Croatian Federation in the accords, as international support for political goals achieved by violence and genocide.54 On the other hand, by ignoring the situation in Kosovo, the Dayton Accords strengthened the position of Milošević at the international and domestic levels. He would be seen as a man of peace because he signed the Dayton Accords and Serbia could now claim legitimate sovereignty over Kosovo.55 Serbia felt validated because the international community recognized its frontiers as international borders, and the territory of Kosovo was included within them.56 The international involvement in Kosovo was more symbolic with monitoring missions by human rights organizations that reported on the situation in Kosovo. A Special Group for Kosovo was created by the International Conference on Yugoslavia in 1992 to deal with Albanian requests outside of the main process dealing with other Republics. However, the main focus of the Special Group was to find an internal solution for Kosovo’s Albanians but not independence. The OSCE (until 1995 CSCE) was also involved because of fears that the crisis in Kosovo could spread into neighboring countries. The OSCE established the Mission of Long Duration in Kosovo, which reported until 1993 when Serbia expelled them due to its Human Rights Rapporteur finding gross human rights vio  

  

Ibid. . See General Framework on Agreement for Peace in Bosnia and Herzegovina, www.ohr. com. Accessed  September . The ICJ confirmed that the Srebrenica massacre was genocide, Bosnia and Herzegovina v. Serbia and Montenegro,  ICJ para.  ( February). The ICTY earlier convicted Radislav Krstic, Chief of Staff 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, Europe’s Nightmare: The Struggle for Kosovo (US: Praeger Publishers, ), -. This would be reiterated later by the Chief of the General Staff 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, .

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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 findings to the Security Council. In their reports from 1993-1997 they found different violations of human rights such as general discrimination; discriminatory legislation in relation to property; resettlement and demographic manipulation through different programs; removal of ethnic Albanians from public office 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 Eagleburger, under George Bush Senior’s 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 conflict 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 fulfi l duties, with slight verbal condemnations every now and then. Thus, the Albanians started to reorganize their approach in a bid to influence the international agenda and seek a final 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 Çlirimtare e Kosoves (UÇK) or the Kosovo Liberation Army (KLA).60 The KLA may be traced back to early 1990’s 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 consideration 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. International 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 Repporteur’s Reports of  November ;  October ;  December ;  November ;  October ;  November ;  October , Weller, note  above, -. Reports are available at Office of the High Commissioner of Human Rights, www.ohchr.org. The warning was conveyed orally and in writing and was addressed to President Slobodan Milošević of Serbia and General Života Panić, 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-warnsserbs-not-to-widen-war.html. See also Tony Barber, “Bush threat to Milosevic,” The Independent,  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 subsequently gradually gained wide support from Albanians.


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

was even labelled a terrorist organization by Robert Gelbard the US special envoy for Kosovo.61 Diplomatic engagement by the KLA’s political wing with the international 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 Homeland is calling) fund. The KLA after the Dayton Agreement developed its structure under the political 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 Kosovo’s Prime Minister, Mr. Thaci, representing the KLA, would be the main participant at Rambouillet Conference. Publicly the KLA for the first 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 communiqué, 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 civilian casualties.63 The presence of the KLA enabled Milošević to justify his regime’s 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 supported, not only by the governing parties in Serbia, but also by the opposition.    

Nened Sebak, “The KLA – Terrorist or freedom fighters?” BBC News,  June . Accessed  September . http://news.bbc.co.uk//hi/europe/. Hajredin Kuqi, Independence of Kosova/o: Stabilising or Destabilising Factor in the Balkans? (Huston: Texas, ), . Richard Caplan, “International Diplomacy and the Crisis in Kosovo,” Royal Institute of International Affairs : (), -. 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 Likoshan, which was followed with the death of  Albanians, in attempt to kill the founder

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With the intensification of fighting and mounting civilian casualties, the international 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 fire 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 efforts involving NATO threats helped to secure the Holbrooke-Milošević agreement on a cease fire and the establishment of the OSCE Kosovo Verification Mission (KVM). The role of the KVM was to monitor the ceasefire declared by Serbia and the KLA and in this way to engage in a preventive diplomacy and eventually make the conditions for dialogue. 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 specifically 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 proliferated, the KVM appeared to be an increasingly helpless observer of the October Holbrook Agreement68. Considering the stubbornness of Serbian regime a final 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 Verification 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 investigators 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 Affairs, :, (), . 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,  January . 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

conferences dealing with the dissolution of Yugoslavia. The conference was organized 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 preparations 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 sovereignty 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 final proposal draft upheld Serbia’s territorial integrity, at least, for the period of three years, after which this arrangement would be considered again. According to this, Kosovo’s status 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 final provisions that after a three year period this arrangement will be reviewed and to determine a mechanism for a final 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 final status of Kosovo. It was because of these arrangements that the conference had two rounds, since the Kosovo Albanian delegation had to break the conference and return to Kosovo to reconfirm 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 finally 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 manage to bring an agreement by parties, the conference and its proposal would make its impact in later developments in determining the final status of Kosovo. Security Council Resolution 1244, which will be discussed later, would have a clear reference to the Rambouillet Accords.73   

 

Contact Group Statement of  January . Accessed  September . http://www. ohr.int/other-doc/contact-g/default.asp?content_id=. Accessed  September . North Atlantic Council statement on Kosovo, NATO Press Release (),  January . See Rambouillet Agreements proposal, Chapter  on Amendment, Comprehensive Assessment and Final Clauses. Accessed  September . http://www.state.gov/www/ regions/eur/ksvo_rambouillet_text.html. Weller, note  above, -. See SC Res. , UN Doc. S/RES/ ( June ). Article , Art. (a), Art () and Annex .

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The failed attempts to settle the crisis at the Contact Group sponsored Rambouillet Conference, followed by an all out offensive of Serbian troops against Albanian civilians in which more than 700,000 people fled the country, led to a NATO reaction. NATO did not have specific 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 Secretary George Robertson, on 21 April 1999, justified NATO intervention on the basis of halting further human rights abuses and possible regional destabilization.75 Lessons learned with atrocities in Srebrenica, Rwanda and Cambodia played an important part in shaping events. Kofi 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 sovereignty 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 administration in Kosovo. UNMIK’s basic role was to develop self-government in Kosovo and prepare it for final status talks.77 4

Back to the Negotiating Table and Ahtisaari’s proposal

During the whole process of the dissolution of Yugoslavia external self-determination for Kosovo was denied continuously by the international community explicitly or implicitly. Kosovo was not seen to qualify to submit an application to the Badinter Commission because only republics were seen to enjoy that right. The Dayton conference again ignored the situation in Kosovo. Richard Holbrooke, who led the US delegation, insisted that the Kosovo issue would have to wait.78 UNSC Resolutions 1160, 1199 and 1203 called for a ceasefire and halt of atrocities but also for recognizing the borders of the Federal Republic of Yugoslavia, inherently situating Kosovo’s 



  

See earlier warning of NATO, North Atlantic Council statement, NATO Press Release (),  January . Accessed  September . http://www.nato.int/docu/ pr//p-e.htm. Briefing by the Defence Secretary, Mr. George Robertson, and the Deputy Chief of the Defense Staff (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 Agreement between NATO and Serbia. William G. O’Neill, Kosovo: an Unfinished Peace (Boulder: Lynne Rienner Publishers, ), .


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

problem as an issue of internal self-determination. This culminated with the SC Resolution 1244 which established UNMIK but also recognized the sovereignty and territorial integrity of Former Yugoslavia pending for final status settlement. Thus Resolution 1244 suspended but preserved territorial integrity of Yugoslavia,79 while it is silent on the final status of Kosovo. The resolution authorized the Secretary-General to establish an international civil presence in Kosovo to provide an interim administration for Kosovo under which the people of Kosovo would enjoy substantial autonomy within the Federal Republic of Yugoslavia,80 “pending a final settlement”,81 for Kosovo. The UN Secretary General was represented in Kosovo by a Special Representative (Special Representative of the Secretary General, SRSG). International administration’s main responsibilities would include, “facilitating a process designed to determine Kosovo’s future provisional status, taking into account the Rambouillet Accords”.82 Recognizing the need to determine the future status of Kosovo but concerned with the democratization process, especially the situation of the minorities, the international community created standards that needed to be met by Kosovo’s institutions. In this process the international community firstly adopted the policy of, ‘standards before status’, later to be changed to, ‘standards with status’, in an apparent show of confidence towards Kosovo’s institutions but also to avoid any situation which could be used by Belgrade to block the process moving forward. These standards consisted of eight main benchmarks that would be used to test the ability of Kosovo institutions to build a state with the rule of law and, in particular, the protection of minorities.83 A successful evaluation of these standards would begin the negotiating process. The green light was given after the UN Special Representative Kay Eide, presented a positive report to the Special Representative of the Secretary General on the fulfilment of standards. On 7 October 2005 the UN Secretary General informed the Security Council that conditions existed for a dialogue to begin, under international mediation. To facilitate the process of negotiation, the UN Security Council appointed as a Special Envoy (SE), former Finnish President, Martti 

   

See preamble of SC Res. : “Reaffirming 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 political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet 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, ) freedom of movement, ) sustainable returns and the rights of communities and their members, ) economy, ) property rights, ) dialogue, and ) Kosovo protection corps. See official website of UN Mission in Kosovo, “Standards for Kosovo”. Accessed  September . http://www.unmikonline.org/standards.

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Ahtisaari to mediate and facilitate the negotiating process. Ahtisaari’s office would be named the United Nations Office of Special Envoy for Kosovo (UNOSEK).84 Due to conflicting interests between the two parties, the Contact Group constructed ten basic principles upon which the future status should be determined.85 



See “Anan preporucio pocetak pregovora,” B, Accessed  September .  October , http://www.naslovi.net/--/b/anan-preporucio-pocetak-pregovora/, The Eide report was criticized by the Serbian side as too weak and not comprehensive. See “Eide je trebalo da bude ostriji,” B,  October, . Accessed  September . http://www.naslovi.net/--/b/eide-je-trebalo-da-budeostriji/. The Contact Group Guiding Principles for the final status of Kosovo are: ) The settlement of Kosovo issue should be fully compatible with international standards of human rights, democracy and international law and contribute to regional security, ) the settlement of Kosovo’s Status should conform with democratic values and European standards and contribute to realizing the European perspective of Kosovo, in particular, Kosovo’s progress in the stabilization and association process, as well as the integration of the entire region in Euro-Atlantic institutions, ) The settlement should ensure multi-ethnicity that is sustainable in Kosovo. It should provide effective constitutional guarantees and appropriate mechanisms to ensure the implementation of human rights for all citizens in Kosovo and of the right of members of all Kosovo communities, including the right of refugees and displaced persons to return to their homes in safety, ) The settlement should provide mechanisms to ensure the participation of Kosovo communities in government, both on the central and on the local level. Effective structures of local self-government established through the decentralization process should facilitate the coexistence of different communities and ensure equitable and improved access to public services, )The settlement of Kosovo’s status should include specific safeguards for the protection of the cultural and religious heritage in Kosovo. This should include provisions specifying the status of the Serbian Orthodox Church’s institutions and sites of the patrimony in Kosovo, ) The settlement of Kosovo’s status should strengthen regional security and stability. Thus, it will ensure that Kosovo does not return to the pre-March  situation. Any solution that is unilateral or results from the use of force would be unacceptable. There will be no change in the current territory of Kosovo, i.e. no partition of Kosovo and no union of Kosovo with any country or part of any country. The territorial integrity and internal stability of regional neighbours will be fully respected, ) The Status settlement will ensure Kosovo’s security. It will also ensure that Kosovo does not pose a military or security threat to its neighbours. Specific provisions on the security arrangements will be included, ) The settlement of Kosovo’s status should promote effective mechanisms to strengthen Kosovo’s ability to enforce the rule of law, to fight organized crime and terrorism and safeguard the multi-ethnic character of the police and the judiciary, ) The settlement should ensure that Kosovo can develop in a sustainable way both economically and politically and that it can cooperate effectively with international organizations and international financial institutions, ) For some time Kosovo will continue to need an international civilian and military presence to exercise appropriate supervision of compliance of the provisions of the Status settlement, to ensure security and, in particular, protection for minorities as well as to monitor and support the authorities in the continued implementation of standards. See Annex of the Letter dated  November  from the President of the Security Council addressed to the Secretary General, UN Doc. S// ( November ).


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

The most important principle is Principle No. 6, which states firmly 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 different forms of diplomacy ranging from shuttle diplomacy to facilitating direct negotiations between both parties in Vienna. The SE and the Deputy SE (DSE) paid their first visit to the parties and the region in November 2005, visiting Pristina and Belgrade, as well as the neighbouring 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 met in 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 final 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’ respective positions on Kosovo’s status did not contain any common ground to achieve 

Fourteen of these rounds of talks have focused on decentralization, the protection of cultural and religious heritage in Kosovo, economic issues, and the protection of community rights. In addition, the SE presided over direct talks with the Serbian and Kosovo leadership in Vienna on  July . President Boris Tadić and Prime Minister Vojislav Koštunica led the delegation of Serbia, while President Fatmir Sejdiu led the Kosovo Team of Unity. The meeting gave each party the opportunity to present at the highest level its view of the future of Kosovo to the other, as well as to the international community, represented both by UNOSEK and by observers from the Contact Group (CG), the EU and NATO. In addition to these direct talks between the parties, since January ,  UNOSEK-led expert missions have visited Belgrade and Pristina to talk separately to the parties on various issues. Seemingly, since November , the SE and his Deputy have been meeting extensively with other key players in the process. Those have included briefings to the Security Council ( March,  July and  September ); meetings with the CG, EU Foreign Ministers, and other international actors, including NATO and the OSCE. Meetings discussed different issues as following: – One Meeting of the Serbian and Kosovo leadership in Vienna ( July ); – Eight meetings related to decentralization (- February,  March,  April,  May,  July,  August,  September and  September); – Three meetings related to the protection of cultural an religious heritage in Kosovo (  May,  July and  September); – Two meetings related to community rights ( August and  September); – One meeting related to economic issues; ( May); See UNOSEK official webpage. Accessed  December . www.unosek.org.

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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 finalize 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 Kosovo’s Future Status. The report and the Comprehensive proposals were officially 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 Kosovo’s 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 Kosovo’s governance independent of the Belgrade authorities. The report also drew the international community’s 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 officials,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 Russia’s 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. Kosovo’s 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.



  

The proposal covers following important issues: ) constitutional provisions, ) human rights and fundamental freedoms and the right of communities and their members, ) decentralization, ) religious and cultural heritage, ) economic and property issues, ) the justice system, ) security sector, ) international presence, ) transitional agreements. See Letter dated  March  from the Secretary General addressed to the President of Security Council, UN Doc. S///Add. ( March ). Ibid. . See Ibid. In its statement, Havier Solana, EU High Representative for the CFSP endorsed the proposals by stating: “I strongly encourage both Belgrade and Prishtina to engage actively with Marti Ahtisaari on the basis of his proposal. I accept both parties to demonstrate responsibility, flexibility and a recognition of the need for realistic compromise based solution”, EU Document No. S/ ( February ).


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

5

Challenging the Legality of the Declaration of Independence

The lack of support from the UN Security Council proved to be a big challenge for Kosovo authorities and supporters of Ahtisaari’s proposal. Kosovo’s declaration of independence was to be coordinated with its main supporters, with recognition coming within hours of declaration, from countries such as the USA, France, Costa Rica, Turkey, Afghanistan, Albania and the United Kingdom.91 States that formally recognized the Republic of Kosovo, though, recognized it for more than what was actually declared: an independent and fully sovereign State. For example, the US President stated, “on behalf of the American people, I hereby recognize Kosovo as an independent and sovereign State”.92 This was more than what the declaration of independence itself which declared a state under international supervision by accepting Ahtisaari’s proposal. Again there is the declaration of recognition from France which states that: “France recognized the Republic of Kosovo as independent a sovereign State”.93 Since its declaration of independence on 17 February 2008 Kosovo has been recognized so far by 70 countries.94 Moreover, many states such as Greece, Romania, Slovakia and Egypt recognize official documents which are issued by Kosovo authorities including passport and car registration plates, suggesting that in the near future many of those states will issue formal statements of recognition. In fact, recognition of passports and other official documents in international law could be considered implied recognition of a state.95 Rejecting the new state, Serbia96 put the issue before the ICJ by requesting an advisory opinion through the UN General Assembly. During the regular session of the Assembly in 2008, Serbia placed on the table a draft proposal for a resolution which was adopted by the General Assembly as Resolution 63/3 on 08 October 2008, requiring the ICJ to give an advisory opinion on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”97 The ICJ accepted the request and



    



Costa Rica recognized the Republic of Kosovo on the day of the Declaration for Independence, 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 available 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 ).

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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 ‘recommendation’ 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 specific cases.100 At the same time the Court determined to narrowly address the question presented. According 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 fulfils the conditions for statehood.102 In this way, the Court probably wanted to avoid a difficult 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 principle of self-determination, it might have placed itself in a difficult 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 conflict with the reality of a Kosovo state recognized by 69 countries. At the same time, the Court would have found it very difficult to ignore the historical development of the situation in Kosovo and its human rights background for decades in contradiction to international 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 

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo Advisory Opinion,  ICJ para.  ( July). See also the Statute of the ICJ, Article . According to the Court, the request for an advisory opinion, “represents its participation in the activities of the Organization and in principle should not be refused” and that only “compelling reasons” should lead the Court to refuse its opinion in response to a request falling within its jurisdiction. Ibid. para. .  Ibid. paras. , . See also the UN Charter Articles ,  and .  Ibid. paras. , .  Ibid. para. .  Ibid. para. .


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

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 violations 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 fulfi lled its task by answering the question, albeit in a very narrow way. Unlike the Court’s approach to the scope of the meaning of the question, 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 independence 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 exercising 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 Kingdom 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 Norway; The Kingdom of Netherlands; The United Kingdom of Great Britain and Northern Ireland. See also oral statements by: The authors of unilateral declaration of independence; 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=.

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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 Kosovo’s 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 representatives or whether they were still acting as the provisional institutions of selfgovernance 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 significance and effects 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, participants 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 first paragraph: “We, the democratically-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 SecretaryGeneral, 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 according 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 People’s Republic of China; The Republic of Cyprus; The Kingdom of Spain; The Russian Federation; Romania; 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 Republic of Belarus; The Plurinational State of Bolivia; The Federative Republic of Brazil; The Republic of Burundi; The People’s Republic of China; The Republic of Cyprus; The Lao People’s 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 . Accessed  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

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 context 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 Council.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 resolution, 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 progress 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 first 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”, Telegrafi,  September . Accessed  September . http://www.telegrafi. 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 Serbia’s foreign minister Vuk Jeremić upon reading the proposed resolution during the GA session. Also see statements by Russia, Brazil, China and Venezuela. General Assembly Press Release GA/ ( September ).

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independence of Kosovo which could prove to be very problematic in pushing one side or the other towards a lasting solution. 6

A Newborn Tries to Enter the Family of Independent Nations

So far Kosovo can count on recognition from many of the most powerful and wealthy states including USA, Japan, Canada, Australia and most of western European states. They represent seven out of G8 forum with more than 60 of the world’s wealth. But, equally important, Kosovo needs quantitative recognition to be able to enter international organizations through which it can benefit politically and economically. Kosovo’s aspirations to enter into some of the most important international organizations present different challenges because of their particular admission criteria. Some of them require unanimity, such as the NATO and the EU. Some of them, such as the World Bank and the IMF, require approval by majority of votes in a weight voting system, while another important organization, the UN, requires an admission process that goes through the SC, which requires majority voting and no veto from any of the permanent member states. After approval by the SC, the General Assembly would have to approve membership by a two-thirds majority of votes. a

The International Monetary Fund and World Bank

In some financial and monetary organizations such as the World Bank and International Monetary Fund voting rights by its members are exercised according to their membership fees.119 It was understandable that the admission of Kosovo to these two organizations would be easier, as those countries that have recognized Kosovo hold most votes within the system. After Kosovo submitted its application for membership to the IMF and World Bank, the Director of World Bank affirmed that that they regarded Kosovo as an independent State and would consider its application for membership. At the same time, the Director of World Bank stated that membership of the World Bank (WB) and International Monetary Fund (IMF) is not linked to UN membership.120 Finally Kosovo become a full fledged member of IMF and WB, after voting which took place in May and June, 2009. It should be noted that during the voting process for IMF and WB membership, Kosovo was supported by more than 90 countries including those countries that did not formally recognize Kosovo, giving strong indications that although not issuing formal recognitions, these particular countries impliedly recognize the Republic of Kosovo, pending official recognition.121 Membership in IMF and WB is very important economically,  Statement of membership of the Republic of Kosovo in the IMF, IMF Press Release No. / ( July ).  See official 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 International Monetary Fund and World Bank which took place on  May  and  June , respectively:


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

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. b

The United Nations

The story is different with other important organization which Kosovo aspires to join. UN is the largest and most representative intergovernmental organization. According to the Charter there are two criteria for a state to become a member: it should be a peace loving state and it should endorse the principles of Charter which Kosovo is ready to fulfi l.122 Membership of Kosovo is important in many ways. First Voting in the IMF: FOR: Albania, Afghanistan, Angola, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Benin, Bulgaria, Burkina Faso, Burundi, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Columbia, Comoros, Congo, Costa Rica, Cote D’Ivoir, Croatia, Czech Republic, D.R. Congo, Denmark, Djibouti, Dominica, Egypt, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, 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 Zealand, 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, Pakistan. 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 Barbuda, Australia, Austria, Bahamas, Bahrain, Barbados, Belgium, Belize, Benin, Bulgaria, Burkina Faso, Burundi, Canada, Cape Verde, Central African Republic, Chad, Columbia, Comoros, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Djibouti, Dominica, 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, Sweden, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, USA, Vanuatu, Yemen, Zambia. AGAINST: St. Vincent and Grenadine. ABSTAINED: Cote D’Ivoire, Egypt, Swaziland, Trinidad and Tobago. BOYCOTTED: Cameroon, D.R. Congo, Ghana, Iraq, Lesotho, Mozambique, Rwanda, South Africa. See Report of the Office for Bilateral Issues, International Organizations and Security Issues of the Ministry of Foreign Affairs of the Republic of Kosovo, MPJ ZMD /, Ministry of Foreign Affairs of the Republic of Kosovo.  See Chapter II of the Charter on Membership issue.

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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 Kosovo’s UN membership recognize it. Second, Kosovo would be part of an organization of collective security in which Kosovo would receive guarantees on territorial integrity and sovereignty in compliance with the principles of the Charter. And also as important it would give Kosovo access to different activities and forums organized within the UN framework. However, mainly because of Russia’s 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 recommendation 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 c

The North Atlantic Treaty Association

Membership to NATO is another aspiration of Kosovo and a very important one. Being outside the UN system, membership in NATO would prove to be a good alternative for collective defense and the preservation of its sovereignty and territorial integrity. NATO is a political-military organization based on democratic values with the principle of collective defense as its primary objective. Today NATO in its redesigned role after the cold war is involved in contributing in different ways to peace and security in many countries outside territory of its member states in Europe and beyond, such as in Bosnia and Herzegovina, Kosovo, Afghanistan and Iraq.125 To be a NATO member Kosovo would have to prove not only that it is a democratic country and which wants to join NATO, but also that it can generate security in the region and beyond.126 The former two requirements are achievable since Kosovo has now established a sustainable democracy by organizing free and fair elections and accountability process towards its citizens and its affinity towards NATO is obvious due to its help in removing Serbia from Kosovo. The latter criteria are very delicate because of the still tense situation in the region and the internal arrangements in Kosovo. The ethnic situation in Kosovo: the factual division of Mitrovica north and Serbia’s readiness to manipulate the Serb minority within Kosovo: may destabilize the new state requiring NATO-KFOR troops to continue their peacekeeping mission.

 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 Official 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

These tensions were evident in Serb national and local elections when Serbia encouraged Serb minorities to organize local elections in Kosovo and form parallel institutions regardless of opposition from Kosovo’s government and UNMIK, which considered them to be illegal.127 Another important factor for NATO is also for military structures to be compatible with NATO standards. This might not prove too difficult 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 suitable 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, Slovakia 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 Kosovo’s membership. d

The European Union

The European Union is another important organization for Kosovo. The EU has stated many times that the western Balkans belong to Europe and thus are to be welcomed in the EU.130 Membership in the EU is also important in many other ways: mainly being part of a strong economic community, but also giving the sense of a European identity. Accession to EU would mean economic and political support for Kosovo through different means. The EU can prove to be a good incentive to set aside deeply rooted differences between Kosovo and Serbia and look for something in common, such as economic and political stability and a European identity. Serbia  “UN Warns Kosovo Serbs on ‘Illegitimate’ Poll,” Balkan Insight,  May . Accessed  September . http://www.balkaninsight.com/en/main/news//; “EULEX says Serb Elections in Northern Kosovo Illegal,” South East Europe Times,  May . Accessed  September . http://www.setimes.com/cocoon/setimes/xhtml/en_GB/ newsbriefs/setimes/newsbriefs////nb-.  See KSF Official Webpage, www.mksf-ks.org. Accessed  December .  See Article , North Atlantic Treaty,  April .  See EU Commissioner for Enlargement Mr. Oli Rehn, The European Perspective for the Western Balkans, SPEECH// ( January ); The EU Enlargement Process: A Year of Progress in the Western Balkans and Turkey, EU Document IP//, Brussels, ( October ).

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is among the countries looking for membership in the EU despite many statements by Serbian officials stating that they will not to abandon their claim for Kosovo in exchange for EU membership.131 The EU’s impact on Serbia’s 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 justification 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 first 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 European Commission Liaison Office in Kosovo. Since it was hard for Kosovo to establish any formal contractual relationship with the EU because five 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 fulfi 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 fulfi l its obligations from the European partnership. Kosovo has established special institutions to manage the European integration process.135 The EU also produces a progress report on Kosovo over specific issues as it does with other aspiring States. Last year in its 2008 Enlargement Strategy the EC decided to conduct a study, unofficially referred as the feasibility study to define further Kosovo’s 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 Đelić, “Nećemo pristati na ucene zarad članstva u EU,” Blic Newspaper,  August . Accessed  September . http://www.naslovi.net/--/blic/djelicnecemo-pristati-na-ucene-zarad-clanstva-u-eu/; “Kosovo nećemo menjati za članstvo 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 Release No. IP//,  January . See also “Kosovo Serbs Feel Betrayed by Serbia on Visa Liberalization,” The South East Europe Times,  July . Accessed  September . http://www.setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/ newsbriefs////nb-.  See EU Council Joint Action //CFSP.  February .  See European Commission official webpage. Accessed  September . http:// ec.europa.eu/enlargement/potential-candidates/kosovo/political_profi le_en.htm.  See Kosovo Agency for Coordination of Development and European Integration official webpage. www.acdei-ks.org. Accessed  December .


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

tion in the pan-Euro-Mediterranean culmination of origin,136 integration into the economic and fiscal surveillance, an offer for agreement with Kosovo on the general principles of its participation on the community programmes, strengthening participation in the Stabilization and Association Agreement, utilizing the instrument of pre-accession (IPA) cross-border cooperation component.137 However in all its relations with the EU, due to the five EU members which have not yet recognized it, Kosovo is regarded as a territory under SC Res. 1244, albeit one where processes are conducted independently of Serbia, meaning a direct relationship between Kosovo authorities and the EU. On the other hand, a very important move was made by the European Parliament on 5 February 2009 when MEPs supported a resolution on the independence of Kosovo. The resolution was passed with 424 votes in favour, 133 against and 24 abstentions.138 In general, membership to EU is linked to many criteria and very complex ones, such as the political and economic factors which a state must fulfil in order to become a membership candidate. In particular, a state has to have affinity towards communitarism which means being able to live within the norms common to many communities. The process is known as acqui communitaire, in which case Kosovo needs to harmonize its legislature with that of the European Union. Acqui communitaire covers 30 different areas which include democratic institutions, a market economy and fiscal policy. After harmonizing its legislation to that of the EU, Kosovo may become a membership candidate in which case all of the EU members would have to vote in favour of Kosovo to become a full EU member.139 In the end it should be noted that the accession of Serbia to the EU and NATO before Kosovo could hinder Kosovo’s membership in these organizations because of the voting requirements for new states’ membership. If it were a member in the EU and NATO prior to Kosovo, Serbia could block membership of Kosovo unless the voting procedure was changed to some form of majority voting. Therefore, it would be best for Kosovo and Serbia to be jointly admitted to the EU and NATO in their hunt for prosperity and peace.

 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 any other 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 Declaration 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 Council: Kosovo-Fulfi 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 Official webpage http://europa.eu/scadplus/glossary/community_acquis_en.htm. Accessed  September .

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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 community has shifted significantly towards human rights and fundamental freedoms. Human 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 benefit 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 eloquently avoided this issue, while answering the question presented. However, by doing so,

 John Locke, The Second Treatise of Government (Indianapolis: C. B. Macpherson, ), -.  Antonio Cassese, Self-Determination of Peoples: a Legal Reappraisal (Cambridge: Cambridge University Press ), .  See Principle V of the Friendly Relations Declaration, GA Res.  (XXV), A/RES/ ( October ): “nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. Principle VII, Helsinki Final Act : “the participating States recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and well-being necessary to ensure the development of friendly relations and co-operation among themselves as among all States”. Article (), of the Vienna Declaration and Programme of Action of : “it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all fundamental human rights and fundamental freedoms”.


Chapter 4, Besfort Rrecaj – The Kosovo Conundrum

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 sovereignty 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 Ahtisaari’s proposal and since then has been recognized by 72 countries. The Constitution 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 acceptance 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 signiďŹ cant way forward but a lot still remains to be done to get to its aspiration of standing in international relations.

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Chapter 5

Kosovo: Unilateral Secession and Multilateral State-Making

JURE VIDMAR*

1

Introduction

On 17 February 2008, Kosovo declared independence.1 Statements of state officials2 and legislation passed by Serbia’s parliament3 leave no doubt that no consent was

*

 

The author wishes to thank the editor of this volume, Dr. James Summers, for helpful comments on earlier drafts. Some parts of this chapter have appeared in the article entitled “International Legal Responses to Kosovo’s Declaration of Independence,” Vanderbilt Journal of Transnational Law  (): –. Some parts also draw on the author’s 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 author’s 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 author’s 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 Tadić, to the Security Council on  February , where he stated: “The Republic of Serbia will not accept 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. ( February ), . 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 () [hereinafter The Decree] <http://www.srbija.sr.gov.yu/kosovo-metohija/index.php?id=>. See also The Decree on Confirmation of the Decree of the Government of the Republic of Serbia on the Annulment of Illegal Acts of Interim Organs of Self-Government in Kosovo and Metohija on the Unilateral Declaration of Independence . Accessed  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.


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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 declaratory 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 difficult to explain the legal situation from the perspective of either theory. From the constitutive 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 declared independence and argues on the legal relevance of international responses to the Declaration of Independence. The circumstances of Kosovo’s Declaration of Independence were determined by the legal arrangements created by Security Council Resolution 1244,9 by the absence of Serbia’s consent and, ultimately, by the considerable 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) collective 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 clarifies Kosovo’s legal status. Parallels will

     

As of  November , the following states have granted recognition (in alphabetical order): Afghanistan, Albania, Australia, Austria, Bahrain, Belgium, Belize, Bulgaria, Burkina Faso, Canada, Colombia, Comoros, Costa Rica, Croatia, Czech Republic, Denmark, Djibouti, Dominican Republic, Estonia, Finland, France, Gambia, Germany, Honduras, Hungary, Iceland, Ireland, Italy, Japan, Jordan, Kiribati, Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malawi, Malaysia, Maldives, Malta, the Marshall Islands, Mauritania, Micronesia, Monaco, Montenegro, Nauru, the Netherlands, New Zealand, Norway, Palau, Panama, Peru, Poland, Portugal, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, Somalia, South Korea, Swaziland, Sweden, Switzerland, Turkey, Tuvalu, the United Arab Emirates, the United Kingdom, the United States, and Vanuatu. See Who Recognized Kosova as an Independent State. Accessed  November . http://www.kosovothanksyou.com. Malcolm Shaw, International Law (Cambridge: Cambridge University Press, ), . Ibid. . See below Chapter .b. See below Chapter .b. SC Res. , UN Doc. S/RES/ ( June ). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,  ICJ ( July) [hereinafter the Kosovo Opinion].


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

be drawn to some other post-1990 new state creations in which the international community had significant involvement. What these new state creations have in common, how they differed from the Kosovo situation and the legal significance of these differences will be shown. 2

Serbia, Yugoslavia and the Territorial Status of Kosovo

a

Historical Developments and Legal Status Prior to Resolution 1244

Predominantly settled by ethnic Albanians, Kosovo became part of the Kingdom of Serbia in 1912.11 As part of Serbia it was later included in Yugoslav state formations.12 In the last Constitution of the Socialist Federative Republic of Yugoslavia (SFRY) from 1974, Kosovo had the status of an autonomous province.13 This meant that it was part of the republic of Serbia but was at the same time a unit with a federal status. This arrangement was unilaterally terminated by Serbia by extra-constitutional means in the late 1980s.14 In 1991, when the SFRY disintegrated,15 only its republics were recognised as independent states.16 Parallel organs of Kosovo Albanians issued a declaration of independence,17 but recognition was granted only by Albania.18 Subsequent tensions between ethnic Serbs and ethnic Albanians resulted in gross human rights violations and a grave humanitarian situation. Writing in 1998, Noel Malcolm observed: To produce an adequate survey of the human rights abuses suffered by the Albanians of Kosovo since 1990 would require several long chapters in itself. Every aspect of life in Kosovo has been affected. Using a combination of emergency measures, administrative fiats 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 workers 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. Approximately 6,000 school-teachers were sacked in 1990 for having taken part in protests,   

    

Noel Malcolm, A Short History of Kosovo (London: MacMillan, ), . Ibid. . See also Miranda Vickers, Between Serb and Albanian: A History of Kosovo (London: Hurst, ), . Constitution of the SFRY (), Article . See also the Constitution of the Socialist Autonomous Province of Kosovo (), translated in Helsinki Committee for Human Rights in Serbia, in Kosovo: Law and Politics, Kosovo in Normative Acts Before and After  (), especially  and . [Hereinafter Kosovo in Normative Acts]. For more see Kosovo in Normative Acts, . See also Malcolm, note  above, . For more see below Chapter .a. See below Chapter .a. Vickers, note  above, . See James Crawford, The Creation of States in International Law (Oxford: Oxford University Press, ), .

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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 militant Kosovo Liberation Army (KLA) emerged.20 Serbian opposition escalated in response.21 The situation in Kosovo was dealt with by Security Council Resolutions 1160,22 1199,23 120324 and 1239.25 The first three were adopted under Chapter VII of the UN Charter. The resolutions, inter alia, called for a political solution of the situation 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, affirming the territorial integrity of Serbia,28 expressed support for, “an enhanced status of Kosovo which would include a substantially 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 Rambouillet, 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

         

  

Malcolm, note  above, . See Vickers, note  above, –. Ibid. -. SC Res. , UN Doc. S/RES/ ( March ). SC Res. , UN Doc. S/RES/ ( September ). SC Res. , UN Doc. S/RES/ ( October ). SC Res. , UN Doc. S/RES/ ( May ). See especially SC Res. , paras. , , ; SC Res. , paras. , , ; SC Res. , paras. , , . See especially SC Res. , paras. –; SC Res. , paras. –; SC Res. , paras. –. References to territorial integrity of the FRY appear in the preambles of SC Res. , para ; SC Res. , para ; and SC Res. , para . The preamble to SC Res. , para , comprehends a more general reference to, “the territorial integrity and sovereignty of all States in the region.” SC Res. , para . See Crawford, note  above, . See Interim Agreement for Peace and Self-Government in Kosovo ( February ) [hereinafter The Rambouillet Accords]. Accessed  September . http://www.ess. uwe.ac.uk/kosovo/RambouilletIndex.htm. The draft was prepared by the Contact Group composed of the United States, the United Kingdom, Russia, France and Italy. See Eric Herring, “From Rambouillet to the Kosovo Accords: NATO’s War Against Serbia and its Aftermath”, International Journal of Human Rights  (): . Herring further argues: “The Contact Group proposal was effectively a NATO proposal as Russia was in many ways a dissenting voice within the Contact Group.” Ibid. . The Rambouillet Accords foresaw signatures by the FRY, Serbia and by representatives of


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

establish conditions for the termination of hostilities in Kosovo32 and foresaw meaningful 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 withdrawal of Serbian military and police forces from Kosovo36 and NATO peacekeeping.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 discussion of the legality question of the NATO intervention is outside of the scope of this chapter. Suffice 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 [Article II], President of Kosovo [Article III], Government and Administrative Organs [Article 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 NATO’s Application of Armed Force Against the Federal Republic of Yugoslavia,” International and Comparative Law Quarterly  (): . 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 Countermeasures in the World Community?” European Journal of International Law  (): ; Christine Chinkin, “Kosovo: A ‘Good’ or ‘Bad’ War?” American Journal of International 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

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The Agreement reaffirmed, “deployment in Kosovo under UN auspices of effective international civil and security presences” and noted that, “the UN Security Council is prepared to adopt a resolution, which has been introduced [Resolution 1244], regarding these presences.”45 It foresaw a, “phased withdrawal of FRY forces from Kosovo to locations in Serbia outside of Kosovo”,46 and deployment of the international security force (KFOR), following adoption of the UN Security Council’s resolution.47 The Military Technical Agreement thus severely limited the sovereign powers of the FRY (succeeded by Serbia) in Kosovo and adopted the spirit of the Rambouillet Accords.48 It may be possible to argue that, given the use of force against Serbia,49 the latter was coerced into signing this Agreement. However, similar provisions were adopted and further developed by Resolution 1244. b

The Legal Framework in the Period of Resolution 1244

The international territorial administration in Kosovo was established by Resolution 1244, which was adopted under Chapter VII of the UN Charter, on 10 June 1999.50 The preamble to Security Council Resolution 1244, inter alia, reaffirmed, “the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia.”51 Nevertheless, the Resolution’s operative paragraphs created an effective situation in which the FRY exercised no sovereign powers in Kosovo.52

       

(June , ) Accessed  April . http://www.nato.int/kosovo/docu/aa.htm. Ibid. Article I, para. . Ibid. Article II, para. . Ibid. Article I, para. . See also ibid. appendix B. Compare note  above. See note  above. SC Res. , UN Doc. S/RES/ ( June ). Resolution  refers to the FRY but now applies to Serbia. SC Res. , Preamble, para. . The Resolution initially demanded: “that the Federal Republic of Yugoslavia put an immediate and verifiable end to violence and repression in Kosovo, and begin and complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable.” (SC Res. , para ). It allowed for the return of, “an agreed number of Yugoslav and Serb military personnel” (ibid. para ) after the withdrawal. However, as follows from Annex , to which the commitment to territorial integrity expressed in the preamble refers, this return was merely symbolic (ibid. annex , Article ) and the number of personnel was severely limited (ibid. annex , note ).The Resolution further decided to deploy, “international civil and security presences,” (ibid. para ) requested, “the Secretary-General to appoint, in consultation with the Security Council, a Special Representative to control the implementation of the international civil and security presence” (ibid. para ) and authorised: “Member States and relevant international organizations to establish the international security presence in Kosovo.” (Ibid. para. ).


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

In accordance with Resolution 1244, the Special Representative of the Secretary-General promulgated a regulation entitled ‘On the Authority of the Interim Administration in Kosovo’, which vested supreme legislative, executive and judiciary authority in the United Nations Interim Administration Mission in Kosovo (UNMIK).53 Subsequently, the Special Representative promulgated the Constitutional Framework for Provisional Self-Government of Kosovo.54 The Constitutional Framework did not foresee the organs of the FRY or Serbia having any authority over the decision-making of Kosovo’s self-governing institutions. Thus, although Resolution 1244 states that the aim of the interim administration is that, “the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,”55 the effective situation implies Kosovo’s autonomy within the interim administration. Indeed, “UNMIK has assumed what is effectively (though not in name) the federal-type role of the Serb and FRY authorities, because these authorities failed to perform that role in the past.”56 Kosovo thus became an internationally administered territory without being put under the international trusteeship system of Chapter XII of the UN Charter.57 While establishing international administration, Resolution 1244 did not define a future territorial status of Kosovo but called for a political process leading toward a final settlement. However, in this period of undetermined future status the international administration, which had been established to solve the governance problem, ended up, “affecting [sic] or creating a sovereignty problem.”58 The political process aiming to lead toward a final settlement was thus greatly influenced by Kosovo’s undetermined future status, the presence of international administration and the fact that Serbia had no sovereign powers in Kosovo.

  

 



UN Doc. UNMIK/REG// ( July ), Section . UN Doc. UNMIK/REG// ( May ) [hereinafter The Constitutional Framework]. SC Res , para. . But see also William O’Neill Kosovo: An Unfinished Peace (Boulder: Lynne Rienner, ), , especially the following observation: “No one knew what the terms ‘substantial autonomy’ and ‘meaningful self-administration’ really meant. What united all Kosovo Albanians, regardless of their political party loyalties, was full independence from Serbia and what was left of the FRY. They did not want to hear about autonomy, however defined.” Ralph Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration,” American Journal of International Law  (): . Michael Bothe and Timo Marauhn, “UN Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration,” in Kosovo and the International Community: A Legal Assessment, ed. Christian Tomuschat (The Hague: Kluwer Law International, ), -. See Wilde, note  above, .

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c

Kosovo’s Unilateral Declaration of Independence

Failed attempts for settlement of the final status

On 24 October 2005, the Security Council expressed its support for commencement of a political process leading toward Kosovo’s final status59 and former Finnish President Martti Ahtisaari was appointed Special Envoy of the UN Secretary-General on Kosovo’s status talks.60 After more than a year of unproductive negotiations, Special Envoy Ahtisaari recommended internationally supervised independence, with the continued presence of international territorial administration.61 In a letter from 26 March 2007, the Special Envoy observed that: “Belgrade demands Kosovo’s autonomy within Serbia, while Pristina will accept nothing short of independence.”62 In his view “the negotiation’s potential to produce any mutually agreeable outcome on Kosovo’s status [was] exhausted.”63 At the same time, eight years of governance in separation from Serbia created an irreversible reality and, according to Ahtisaari, Serbia could not regain any degree of control over Kosovo without violent opposition of Kosovo Albanians.64 The effective situation suggested that the only alternative to independence was the status quo. However, the latter was also rejected by Ahtisaari, arguing that its uncertain status prevents Kosovo’s democratic and economic development.65 Serbia and Russia rejected the Ahtisaari Plan and Russia made it clear that it would veto any draft Security Council resolution expressing support of Kosovo’s independence.66 As a result, the Ahtisaari Plan was not endorsed by the Security Council. Another round of negotiations followed and Serbia proposed the so-called ‘Åland Islands Model’ for Kosovo,67 which would be put in place for twenty years. Once  

      

UN Doc. S/PRST// ( October ). See the Security Council Report, Kosovo Historical Chronology [hereinafter Kosovo Historical Chronology]. Accessed  March . http://www.securitycouncilreport. org/site/c.glKWLeMT IsG/b.. UN Doc. S// ( March ) [hereinafter The Ahtisaari Plan]. Ibid. para. . Ibid. para. . Ibid. para. . Ibid. para. . For more see Kosovo Historical Chronology, note  above. “Belgrade’s Proposal Freezes Kosovo Status for  Years,” Tanjug,  November . Accessed  March . http://www.mfa.gov.yu/Policy/CI/KIM/__e.html. The so-called Åland-Islands-Model is summarised in following terms: “Serbia’s sole jurisdiction in the case of Kosovo would be in the sphere of the foreign policy, control of the borders, protection of the Serb religious and cultural heritage. Serbia would solely be in charge of defence and this would not be applied in Kosovo… Kosovo would be solely in charge of its budget, economic policy, agriculture, the media, education, protection of the environment, youth, sports, fiscal policy, internal aff airs, health care, energy, infrastructure and employment. Kosovo would independently elect and develop its institutions, and Serbia would not interfere in this. Kosovo would have legislative powers in


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

again, it became clear that Kosovo Albanians were not willing to accept anything but independence and the additional round of negotiations merely reaffirmed 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 Officials of the United States and of the European Union (EU) soon expressed a general willingness to recognise Kosovo as an independent state.69 Ultimately, Kosovo’s 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 coordinated between Kosovo officials, 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 community 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 powers, an independent and complete judicial system in charge of disputes in the sole jurisdiction of Kosovo and in other cases determined in the agreement. Belgrade’s 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 offered as its exclusive jurisdiction the negotiating of agreements with other states and international organizations. Kosovo prepares agreements in consultation with Serbia, while Belgrade formally signs the agreements along with the signature with Kosovo and Metohija.” Kosovo Troika Press Communiqué, The Baden Conference ( November ). Accessed  March . http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/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=FEDB FEFBACACB&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 official of the Slovenian foreign ministry after meeting with representatives of the United States Department of State on  December  (in the first 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 Kosovo’s declaration of independence was coordinated between Kosovo’s 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 first recognitions could already arrive… The United States… after Kosovar authorities declare independence, will be among the first 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 readiness to recognise Kosovo without hesitation… The United States is currently drafting

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The ICJ’s Advisory Opinion on Kosovo

On 8 October 2008, the United Nations General Assembly submitted a request for an Advisory Opinion from the ICJ on the Unilateral Declaration of Independence of Kosovo. The question posed to the Court reads: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”71 The question did not ask on whether Kosovo was a state; whether recognition of Kosovo was lawful; whether Kosovo Albanians are a people for the purpose of the right of self-determination or even whether they have a ‘right to remedial secession’. In the Opinion of 22 July 2010, the Court drew a distinction between the question posed by the General Assembly and the question which was dealt with by the Supreme Court of Canada in the Quebec case.72 While the question in the Quebec case specifically asked whether the organs of Quebec had, “the right to effect the secession of Quebec from Canada unilaterally,”73 the ICJ noted that the question referred to it did not ask on whether or not there existed a specific right vested in Kosovo in general or in the institutions of its self-government in particular to declare independence.74 The Opinion thus focused only on the questions on whether or not the Unilateral Declaration of Independence was itself in accordance with international law. In so doing the Court identified three possible sources of illegality: (i) general international law, (ii) Resolution 1244, and (iii) the Constitutional Framework of Kosovo.75 In regard to general international law, the Court held that the unilateral character of a declaration of independence alone does not render such a declaration illegal.76 In the Court’s words: [T]he illegality attached to [some other] declarations of independence … stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).77

      

a constitution with Kosovars. The situation on the ground is favourable. The United States hopes that Kosovars are not going to lose self-confidence, as this could result in United States’ loss of influence.” (Translations from Slovene are the author’s 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

The Court further identified Resolution 1244 as the lex specialis which could potentially prohibit a unilateral declaration of independence. But, according to the Court, Resolution 1244, “did not bar the authors of the declaration … from issuing a declaration of independence from the Republic of Serbia.”78 The formulation ‘did not bar the authors of the declaration’ seems to be very carefully chosen. Indeed, in the Court’s view, independence was not declared by Kosovo’s 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 Kosovo’s institutions of self-government but, in light of Court’s finding 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 Independence. Discussing Resolution 1244 more broadly, the Court held that a prohibition of a declaration of independence cannot “be derived from the language of the resolution 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 final settlement of Kosovo’s territorial status.81 If this argument is accepted, the final 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 intended to take effect, or actually taking effect, within the legal order in which those Provisional 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 finds 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 issued by Kosovo’s institutions of self-government but rather by a group of individu    

Ibid. para.  (emphasis added). Ibid. para. . Ibid. para.  Ibid. para. . Ibid. para. .

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als.83 Unlike in respect of Resolution 1244, the Court did not try to make a broader argument. The Court’s reasoning is not without controversies, yet a thorough analysis of the advisory opinion is not the purpose of this chapter. The Court ultimately concluded 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 findings did not have any implications for the question 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. 3

Kosovo and Unilateral Secession

a

The Position of Unilateral Secession in International Law

It is not disputed that secession may take place if the Constitution of the parent state expressly allows for it86 or if there exists approval of the parent state.87 Neither is the case in the example of Kosovo. Statements of representatives of the Republic of Serbia and legislation passed in Serbia’s parliament show that Serbia expressly opposes Kosovo’s independence and that Kosovo’s secession is unilateral.88 Unilateral secession is, however, not an entitlement under international law. As has been established by the Supreme Court of Canada in the Quebec Case: The recognized sources of international law establish that the right to self-determination of a people is normally fulfi lled through internal self-determination – a people’s pursuit

     

See note  above. Kosovo Opinion, para. . Ibid. para. . David Raič, Statehood and the Law of Self-Determination (The Hague: Kluwer Law International, ), . Ibid. 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 () [hereinafter The Decree]. Accessed  April . http://www.srbija.sr.gov.yu/kosovometohija/index.php?id=. See also The Decree on Confirmation of the Decree of the Government of the Republic of Serbia on the Annulment of Illegal Acts of Interim Organs of Self-Government in Kosovo and Metohija on the Unilateral Declaration of Independence (). Accessed  April . http://www.parlament.sr.gov.yu/content/ lat/akta/akta_detalji.asp?id=&t=O>.


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

of its political, economic, social and cultural development within a framework of an existing state.89

While not an entitlement, it is questionable whether unilateral secession is prohibited under international law. There is no specific prohibition of unilateral secession.90 Yet, in one view: [T]he legality of secession cannot be judged on whether there is a specific rule of authorizing 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 systemic 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   







Reference re. Secession of Quebec []  Supreme Court Reports (Canada), para  [Hereinafter: The Quebec Case]. Thomas Franck, Fairness in International Law and Institutions (Oxford: Oxford University Press, ), . Alexander Orakhelashvili, “Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo,” Max Planck Yearbook of United Nations Law  (): . See Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, ), , arguing that: “it is not the disruption of the territorial unity as such that renders independence unlawful.” The only clear example of a successful unilateral secession in the era of the UN Charter may, possibly, be Bangladesh. Yet not even Bangladesh became member of the UN before Pakistan granted recognition. For more see Crawford, note  above, . The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res.  (XXV), UN Doc. A/RES/ ( October ) [hereinafter the Declaration on Principles of International Law]. Principle , para  of the Declaration provides: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” The inverted reading of this provision may suggest that a government not representative of ‘the whole people belonging to the territory without distinction as to race, creed or colour’ may not be en-

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(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 defined 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 international 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 affected by circumstances factually precipitating secession, so that recognition may be more forthcoming 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 generally, and states particularly, as to recognition.97

Therefore, while remedial secession is not an entitlement, it may well be that oppression 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 difficult 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

Although there is no right … to unilateral secession … this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate 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 regard 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 insufficiently 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 identified by the Supreme Court of Canada, play a role in recognition. b

Statehood Criteria and Legality

The traditional statehood criteria stem from the Montevideo Convention on Rights and Duties of States.102 Article 1 of this Convention provides: “The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory, (c) government; and (d) capacity to enter into relations with other states.”103 It is commonly accepted that these criteria reflect customary international law.104 It is most questionable whether Kosovo meets the government requirement. In the general interpretation of this criterion, it is not enough that a government merely exists but it also needs to be effective in the territory of the state in question as well as have the capacity to act independently of any other government.105 In this regard the International Commission of Jurists held in the Åland Islands case that Finland did not become a sovereign state, “until the public authorities had become strong enough to assert themselves throughout the territories of that State without the assistance of foreign troops.”106

    

The Quebec Case, para. . League of Nations Treaty Series  (): . Ibid. See, for example, Raič, note  above, . See, for example, Anthony Aust, Handbook of International Law (Cambridge: Cambridge University Press, ), -.  International Commission of Jurists, Report on Legal Aspects of the Aaland Islands Question, League of Nations Official Journal, Special Supplement No.  (): –. It is, however, questionable to what degree this decision has been followed in subsequent practice of new state creations. See notes - below.

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Kosovo’s Declaration of Independence107 and the subsequently adopted Constitution of the Republic of Kosovo108 both subscribe Kosovo to the Ahtisaari Plan and to Resolution 1244. Kosovo thus legally accepted the continuous presence of the supreme international authority which poses notable restraints on its sovereignty. It is therefore obvious that Kosovo does not have an independent government. Kosovo evidently has a government independent of Serbia. However, what is required under statehood criteria is a government independent of any other government and not only independent of a particular one. One possibility would be to regard Kosovo as a protected state, with a status similar to that of Bosnia-Herzegovina.109 However, there is one important difference between the two situations. Bosnia-Herzegovina accepted restraints on its sovereignty voluntarily, through the Dayton Accords in 1995,110 when it already was a state and a member of the UN,111 while it is highly questionable whether Kosovo accepted the restraints on its sovereignty voluntarily. It obviously had to accept them in order to comply with the pre-existing legal arrangement governing its territory. In addition, Kosovo’s government is not effective in the entire territory of Kosovo.112

 See note  above.  Kosovo’s Parliament adopted the Constitution of the Republic of Kosovo on  April . Article  of the Constitution provides: “Notwithstanding any provision of this Constitution, the International Civilian Representative shall, in accordance with the Comprehensive Proposal for the Kosovo Status Settlement dated  March , be the final authority in Kosovo regarding interpretation of the civilian aspects of the said Comprehensive Proposal. No Republic of Kosovo authority shall have jurisdiction to review, diminish or otherwise restrict the mandate, powers and obligations...”  See the General Framework Agreement for Peace in Bosnia and Herzegovina [the Dayton Accords], Article X ( December ). Accessed  August . http://www. oscebih.org/overview/gfap/eng. Created in the context of a violent attempt to dismember Bosnia-Herzegovina, the current federal arrangement is a compromise, brokered by the United States. The parties to the Dayton Accords were the Republic of BosniaHerzegovina, the Republic of Croatia, the FRY and two newly-created entities in BosniaHerzegovina: Republika Srpska and Federation of Bosnia and Herzegovina. The Dayton Accords also implemented the institution of the High Representative which severely limits sovereign powers of the authorities of Bosnia-Herzegovina.  For more see Crawford, note  above, -.  Bosnia-Herzegovina became a member of the UN on  May . See GA Res. /, UN Doc. A/RES// ( May ). The Badinter Commission expressed the view that Bosnia-Herzegovina became a state on  March . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No.  ( July ), para . This critical date for Bosnia-Herzegovina’s becoming a state was affirmed also by the ICJ. The Bosnia Genocide Case,  ICJ para  ( July).  Kosovo’s government does not exercise effective control over predominantly Serb-settled northern parts of Kosovo. See, for example, “Walking the Kosovo Tightrope,” The Guardian,  June . Accessed  August . http://www.guardian.co.uk/commentisfree//jun//kosovo-eu-un-serbia.


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

Significantly, non-effective entities have become states before. In the age of decolonisation, exercise of the right of self-determination was often regarded as more important than effectiveness.113 Even in non-colonial situations effectiveness considerations were not applied strictly when new states were created: Croatia and BosniaHerzegovina became states, although their governments did not exercise effective 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 fulfi 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 effective, it will not necessarily be considered a state if it was created illegally.116 The illegality of a state creation has been accepted in certain situations when effective territorial 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) Articles 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 effective territorial situation, created

 See Malcolm Shaw, International Law (Cambridge: Cambridge University Press, ), .  See Raič, note  above,  and Crawford, note  above, .  See Crawford, note  above, .  Ibid. -.  See SC Res. , UN Doc. S/RES/ ( November ) for collective response to illegal creation of the Turkish Republic of Northern Cyprus (TRNC).  See GA Res.  (XVI), UN Doc. A/RES/ ( June ), SC Res. , UN Doc. S/ RES/ ( May ), GA Res.  (XX), UN Doc. A/RES/ ( November ); GA Res.  (XX), UN Doc. A/RES/ ( November ); SC Res. , UN Doc. S/ RES/ ( November ); SC Res. , UN Doc. S/RES/ ( November ); SC Res. , UN Doc. S/RES/ ( March ) for collective response to illegal creation of Southern Rhodesia.  See GA Res.  F, UN Doc. A/RES/ ( December ); GA Res, , UN Doc. A/ RES/ ( November ); GA Res. / A, UN Doc. A/RES// ( October ); SC Res. , UN Doc. S/RES/ ( December ); SC Res.  UN Doc. S/RES/ ( May ); GA Res. /, UN Doc. A/RES// ( December ); GA Res. /A UN Doc. A/RES// ( December ) for collective response in relation to illegal creation of South African homelands.  Commentary to Article , Report of the ILC, UN Doc. A// (), -.  ILC Articles on Responsibility of States for Internationally Wrongful Acts, Article (). GA Res. /, UN Doc. A/RES// ( January ).

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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 Kosovo’s state creation can be traced from NATO’s use of force,125 whether as a consequence of non-meeting of the additional statehood criteria or of non-fulfilment of the legality-based recognition requirements. However, such an argument is not without difficulties. Kosovo’s Declaration of Independence was proclaimed by the self-governing organs established under the legal regime of Resolution 1244.126 Therefore it is difficult to accept that Kosovo’s Declaration of Independence stems directly from the NATO intervention and that the obligation to withhold recognition applies erga omnes, as a consequence of a violation of jus cogens.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 Kosovo’s (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 declaration 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 particular 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  Commentary to Article , Report of the ILC, UN Doc. A// (), .  See Robert McCorquodale, “The Creation and Recognition of States.” in Public International Law: An Australian Perspective, eds. Sam Blay, Ryszard Piotrowicz and B. M. Tsamenyi (Melbourne: Oxford University Press, ), .  See Stefan Talmon, “The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur?” British Yearbook of International Law  (): .  See note  above,  See above Chapter .b.  See Jean D’Aspremont, “Regulating Statehood,” Leiden Journal of International Law  (): .  Kosovo Opinion, para .  See note  above.  Compare notes  and  above.  Consider Russia’s view: “The Russian Federation continues to recognize the Republic of Serbia within its internationally recognized borders. The  February declaration by the local assembly of the Serbian province of Kosovo is a blatant breach of the norms and principles of international law – above all of the Charter of the United Nations – which undermines the foundations of the system of international relations. That illegal act is


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

The first 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 ICJ’s 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 specific resolutions of UN organs explicitly calling for non-recognition.134 It remains unclear whether “a binding resolution or decision of a UN body is necessary” for an obligation of non-recognition to be triggered135 but, nevertheless, “such a resolution or decision makes the obligation definitive.”136 Non-recognition has been called for in a number of General Assembly resolutions.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 effect.”140 This suggests that states perceive themselves to be legally bound to withhold recognition in situations of illegal state creations even in the absence of resolutions of the UN organs explicitly calling for recognition. The added value of reso-

       



an open violation of the Republic of Serbia’s sovereignty, the high-level Contact Group accords, Kosovo’s 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 final 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, .

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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 specific resolution calling for non-recognition is absent. 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 Indonesia’s occupation, the Security 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, inter alia, recalled that, despite Indonesia’s occupation, Portugal was still regarded its administrative power.141 The resolutions, however, did not specifically call for nonrecognition of Indonesia’s 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 different from those in the Kosovo question and Resolutions 384 and 389 are not identical to Resolution 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 significant, 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 significant 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. Portugal’s 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

 SC Res. , UN Doc. S/RES/ ( December ), paras. -; SC Res. , UN Doc. S/RES/ ( April ), para. .  East Timor,  ICJ para.  ( June).  See note  above.  Orakhelashvili, note  above, -.


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

It is questionable whether Kosovo meets the traditional statehood criteria, yet entities which did not meet them have become states before. Further, Kosovo was not established in breach of the legality-based statehood requirements and, consequently, an erga omnes obligation to withhold recognition does not apply. In the absence of a specific resolution calling for non-recognition, there is no unitary answer to this question and more interpretations are possible. It is significant that at least seventy two states believe that they are not under an obligation to withhold recognition. Now legal significance of these recognitions needs to be considered. 4

The Relevance of Recognition

Recognition is, “a method of accepting factual situations and endowing them with legal significance, but this relationship is a complicated one.”145 Indeed, the relationship between factual situations and the creation of legal rights by the act of recognition remains a controversial issue in international law, since the act has legal consequences while it is, “primarily based on political or other non-legal considerations.”146 In the perception of the constitutive theory of recognition, the question of, “whether or not an entity has become a state depends on the actions [i.e. recognitions] of existing states.”147 However, the situation in which one state may be recognised by some states but not by others is an evident problem and thus a great deficiency of the constitutive theory.148 In the absence of a central international authority for granting of recognition, it is unclear how many and whose recognitions are necessary for an entity to be considered a state. It is further unclear whether an entity would then enjoy the attributes of statehood vis-à-vis the recognising states but not vis-à-vis those withholding recognition. Therefore, the preferred view is that recognition is declaratory.149 This means that a, “state may exist without being recognized, and if it does exist, in fact, then whether or not it has been formally recognized by other states, it has a right to be treated by them as a state.”150 According to this view, when recognition actually follows, other states merely recognise a pre-existing situation. However, this answer does not seem to be entirely satisfactory, as it is not evident why the act of recognition is still important.151 The relatively recent examples of the FRY and Macedonia prove that in clear situations of the emergence of a new state, its statehood will not be questioned, even if  Shaw, note  above, .  McCorquodale, note  above, .  Thomas Grant, The Recognition of States: Law and Practice in Debate and Evolution (Westport: Praeger, ), .  James Brierly, The Law of Nations (Oxford: Clarendon Press, ), .  Matthew Craven, “What’s in a Name? The Former Yugoslav Republic of Macedonia and Issues of Statehood,” Australian Yearbook of International Law  (): .  Brierly, note  above, .  See Christian Hillgruber “The Admission of New States to the International Community,” European Journal of International Law  (): .

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recognition is virtually collectively withheld.152 Clear situations may be considered to be those in which it is not questionable whether the statehood criteria are met and there exists no competing claim to territorial integrity by a parent state. When recognition in such situations follows, this will be only an act of acknowledgement that a new state has emerged and will not have constitutive effects. But recognition of an entity with an ambiguous legal status is a separate issue. In unclear situations, recognition can “have the effect of providing crucial evidence of entity’s status.”153 And when recognition of such an entity is granted virtually universally, recognition may well have an effect of a collective state creation: [I]n many cases, and this is true of the nineteenth century as of the twentieth, international 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 provided, 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 finds 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 international 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 effects 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 collective 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 Commission: A Contextual Study of Peace-Making Efforts in the Post-Cold War World (Aldershot: 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

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 recognitions 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 5

The Patterns of Collective State Creation in the Post-1990 Era

In the practice of post-1990 state creations, the dissolution of the Soviet Union, the dissolution of Czechoslovakia and the secession of Eritrea were examples of emergence of new states in the absence of a claim to territorial integrity.159 Recognition in these circumstances merely acknowledged the fact that new states had emerged and international involvement had no constitutive effects. This was not the case in some other post-1990 state creations. This section examines the legal significance of international involvement in the dissolution of the SFRY and in the creations of the states of Montenegro and East Timor. The patterns of international involvement in these state creations are then contrasted with the example of Kosovo. a

The Dissolution of the SFRY

In the dissolution of the SFRY, the involvement of the European Community (EC) played a crucial role. As part of its response to the crisis in Yugoslavia, the so-called ‘Badinter Commission’ was established.160 The Badinter Commission expressly held  See Crawford, note  above,  (for dissolution of the Soviet Union), ibid.  (for dissolution of Czechoslovakia), ibid.  (for the creation of Eritrea).  As a response to the crisis in the SFRY, the European Community (EC) and its memberstates, 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 Commission and the scope of its decisions were, however, not entirely defined: “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 Commission 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 Commission’s brief.” Grant, note  above, . The opinions of the Badinter Commission were formally not legally binding; however, this was a body of strong legal persuasiveness and its opinions importantly shaped international response to the dissolution of the SFRY.

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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 recognition. 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 Commission’s previous opinions holding that the SFRY was in the process of dissolution (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 finding was supported by the fact that four out of the SFRY’s six constitutive republics had declared independence,169 while on 8 October 1991, Bosnia-Herzegovina had not yet declared independence170 and Macedonia’s 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 Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para .  Ibid.  Ibid.  Ibid.  In Opinion No.  the Badinter Commission dealt with questions of succession after the dissolution of the SFRY had been completed and for this purpose it had to establish critical dates on which the SFRY’s former republics became independent states. See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No.  ( July ), para. .  See GA Res. /, UN Doc. A/RES// ( May ) and GA Res. / UN Doc. A/RES// ( May ).  Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para. .  Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para. .  Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , para. .  Bosnia-Herzegovina declared independence on  October . See The Official Gazette of the Socialist Republic of Bosnia-Herzegovina, No.  ( October ).  Macedonia declared independence on  September . See the Declaration on the Sovereignty and Independence of the Republic of Macedonia,  September , reprinted in Snežana Trifunovska, Yugoslavia through Documents: From its Creation to its Dissolution (Dordrecht: Martinus Nijhoff, ), -.  See Grant, note  above, -, arguing: “Though the United States, the Soviet Union, and various West European states and organizations stated their disapproval of


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

stance the acquisition of statehood is much more questionable and, arguably, essentially depends on recognition.173 Slovenia’s and Croatia’s unilateral secessions would, arguably, ultimately depend on recognition by the international community.174 However, recognition on 8 October 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 final 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 finding 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 removed the claim to territorial integrity of the SFRY and recognitions were ultimately declaratory.180 The broader involvement of the EC, however, had significant constitutive effects.

       

Croat and Slovene unilateral declarations of independence, Germany quickly began to suggest that it would extend recognition to the putative states. As early as  August , the German government expressed support for the secessionists.” See also Raič, note  above, , arguing that on  October , people of Croatia possessed the right to secession based on the ‘remedial secession’ doctrine. The Quebec Case, para. . A ‘remedial secession’ argument could, possibly, be advanced. Compare notes – above. Richard Caplan, Europe and Recognition of New States in Yugoslavia (Cambridge: Cambridge University Press, ), -. Ibid. . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. . See note  above. SC Res. , UN Doc. S/RES/ ( May ) and SC Res. , UN Doc. S/ ( September ). The constitutive effects of the EC’s involvement in the state creations are captured in the following anecdote: “At the second meeting with an EC foreign ministerial troika in Zagreb on  June [], where the EC negotiators were seeking a restoration of the status quo ante, De Michelis [foreign minister of Italy] approached Rupel [foreign minister of Slovenia] and assured him privately that Slovenia would not be forced to rejoin Yugoslavia: ‘You will be an independent state. Croatia, on the other hand is a more

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Kosovo’s Unilateral Declaration of Independence

Montenegro

In 1992, Montenegro and Serbia founded the FRY.181 The self-government of both constitutive republics was firmly rooted in the Constitution of the FRY.182 In the period of the Milošević regime, the Montenegrin self-governing organs did not conduct policies truly independent of Serbia and of the FRY. But nevertheless, after the regime-change in October 2000,183 Montenegro’s constitutional status, the existence of self-governing organs and the historical pedigree of territorial delimitation between 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 fifty percent of Montenegro’s population and expressly opposed by twentyfive percent.185 Another twenty-five percent of Montenegro’s population did not have an opinion on this question.186 This was a significant difference compared to 1998, when independence was supported only by twenty-five percent, rising to thirty percent in 1999.187 Despite this increasing support for independence, a significant share of the population and influential political parties determinately opposed the change of Montenegro’s territorial status.188 With the experience of the armed conflict associated with the dissolution of the SFRY in mind, the international community feared that pro-independence pressures could result in Montenegro’s unilateral declaration of secession and potentially lead

 







  

complicated issue, since its situation is different from yours. But you’ll 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 significant 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, ), . Montenegro’s former international border, with only some minor modifications, 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 uoči referenduma ( December ). Accessed  March . http://www.aimpress.ch/dyn/pubs/archive/data//--pubspod.htm. Ibid. Ibid. Ibid.


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

to turmoil in Montenegro itself and broadly in the region.189 In response, the EU brokered a compromise between those who favoured independence and those who advocated a continued union with Serbia.190 The result of the compromise was the adoption of a new constitution in February 2003, which significantly differed from the one previously in force. The Constitution, inter alia, renamed the FRY as the State Union of Serbia and Montenegro (SUSM)191 and referred to its constitutive parts as ‘states’.192 Compared to the federal arrangement of the FRY, the SUSM was a very loose federation with only a few federal organs which had severely restricted competencies.193 Unlike the Constitution of the FRY, the EU-brokered Constitution of the SUSM provided for a clear constitutional mechanism to secede and even solved the problem of state succession in advance. Article 60 of the Constitution of the SUSM provided: 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, especially 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 reflects the fact that the creation of this state was a political compromise and the political reality was

 The International Crisis Group Briefing No. , Montenegro’s Independence Drive ( December ), .  Ibid.  Constitution of the SUSM (), Article .  Ibid. Article .  The state union had only five common ministries: internal affairs, defence, international economic affairs, domestic economic affairs and human and minority rights. Ibid. Articles –. The Constitution further specified that only the SUSM had the international personality but at the same time allowed the federal units some competencies in foreign policy, even membership in those international organisations which do not prescribe statehood as a condition for membership. Ibid. Article .  Constitution of the SUSM (), Article  (translation is the author’s own).

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clearly expressed: Article 60 evidently acknowledged that Montenegro (not Serbia) was the federal unit likely to seek independence. While Article 60 specifically demanded for the decision on the future status to be taken at referendum, its rules remained undefined. These again became subject to EU involvement. The EU imposed the Independence Referendum Act, which required that secession be confirmed by a majority of fifty-five percent of votes cast, under the condition of participation of at least fi fty percent plus one vote of those eligible to vote.195 The required majority was probably based on opinion polls suggesting that approximately half of the population supported independence while a relatively large share of the population determinedly opposed it.196 In the referendum held on 21 May 2006, independence was supported by 55.53 percent of those who voted at a turnout of 86.49 percent of those eligible to vote.197 The support for independence thus barely met the EU-imposed fifty-five percent requirement. The threshold was described as a political gamble as it would be quite possible that the result would fall in the ‘grey zone’ between fifty and fifty-five percent.198 In such a circumstance: Montenegro’s government would have been legally unable to declare independence. At the same time it would have viewed the referendum result as a mandate to further weaken the State Union. The unionists would have viewed the result as a victory and demanded immediate parliamentary elections and closer ties with Belgrade.199

Nevertheless, based on the referendum vote, the Montenegrin Parliament, on 3 June 2006, adopted the Declaration of Independence200 and on 30 June 2006 Montenegro was admitted to the UN.201 In the case of Montenegro, the EU became involved in the process of the dissolution of the FRY already prior to Montenegro’s declaration of independence. The EU brokered a compromise which resulted in the transitional constitution of the SUSM, which comprehended a clear mechanism for secession. Although the procedure was different, the effect was in many respects similar to the case of the SFRY – the claim to territorial integrity of the parent state was removed and Montenegro’s secession was not unilateral. Upon the declaration of independence there was no doubt that Montenegro was a state. Its emergence at that time was a mere matter of fact. Yet the  The Act on Referendum on State-Legal Status of the Republic of Montenegro, The Official Gazette of the Republic of Montenegro No. / (March , ), Article .  See note  above.  Svet ministara državne 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, Briefing No. , Montenegro’s Referendum (May , ), .  Ibid.  Declaration of Independence of the Republic of Montenegro, The Official 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

EU involvement created the legal circumstances in which the state of Montenegro had emerged. While recognition was declaratory, international involvement into the state creation had considerable constitutive effects. 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 suffice to recall that after the Portuguese colonial administration left East Timor, on 7 December 1975, Indonesia occupied the territory, claiming, “to be effecting East Timorese self-determination.”203 In Portugal’s understanding, however, East Timor was not properly decolonised and, consequently, 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 Realities (Singapore: Singapore Institute of International Affairs, ); 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 Civilizing 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 Substance 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 International 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 Relations and International Platform of Jurists for East Timor, ), –.

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In 1999, the new Indonesian leadership indicated that it would be willing to discuss 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 violence, 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 Administration in East Timor (UNTAET), which will be endowed with overall responsibility for the administration of East Timor and will be empowered to exercise all legislative and executive authority, including the administration of justice.”214 Resolution 1272 in its preamble also reaffirmed “respect for the sovereignty and territorial integrity 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 territorial administration put in place in Kosovo thus obviously became the role model for East Timor. Yet the search for the final status in East Timor went in a different 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 Timor’s course to independence was also affirmed 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

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 independence was not a matter of decolonisation. Indeed, the real question was not independence from Portugal but independence from Indonesia. International involvement into this state creation was significant and took place on the level of the UN. While the international territorial administration, established by the Security Council under 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 different. Indeed, there existed consent of the parent state as well as affirmation by a Security Council’s 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 declaratory, the international involvement into the state creation itself had constitutive effects. International involvement successfully procured Indonesia’s consent and the international territorial administration, whose actions are attributable to the UN,221 supervised the transition toward statehood. d

How does Kosovo Compare to other Examples of Post-1990 State Creation?

The dissolution of the SFRY and transitions to independence of East Timor and Montenegro saw significant international involvement into state creation. In all three circumstances international involvement removed the claim to territorial integrity. In the example of the SFRY, the claim to territorial integrity was removed by a universally accepted position that the parent state no longer existed. In the case of East Timor and Montenegro, the claim to territorial integrity was removed by international efforts to procure consent of the parent state, either in the form of brokering an explicit consent to holding a legally binding referendum on the future status of the territory (East Timor) or brokering a clear constitutional mechanism allowing for secession (Montenegro). In these circumstances recognitions indeed merely acknowledged that new states had emerged, yet prior international involvement was crucially important for producing the fact of the emergence of a new state. In the example of Kosovo, there was an obvious attempt to follow East Timor’s path by trying to secure approval of its parent state and confirm Kosovo’s path to independence with a Security Council Resolution. After this attempt failed, a group of states decided to implement the Ahtisaari Plan without Serbia’s consent and/or a Security Council Resolution.222 There exists evidence that Kosovo declared indepen SC Res. , S/RES/ ( January ). Notably, this resolution was not adopted under Chapter VII of the UN Charter.  See East Timor: Birth of a Nation, BBC,  May . Accessed  March . http:// news.bbc.co.uk//hi/asia-pacific/.stm.  GA Res. /, UN Doc. A/RES// ( September ).  Bothe and Marauhn, note  above, .  See above, Chapter .c.

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dence with the prior approval of a number of states, which also promised recognition in advance.223 However, unlike in other post-1990 state creations, the competing 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. 6

Did Recognition and Broader International Involvement Constitute the State of Kosovo?

As the Supreme Court of Canada pointed out in the Quebec Case, in the circumstances of a unilateral secession, recognition can have constitutive effects.224 Further, the situation in Kosovo is one in which the Declaration of Independence was obviously pre-negotiated with a number of states. Kosovo is thus one example where it is difficult to differentiate between recognition and an attempt at collective state creation.225 As argued above, this may be the case where a competing claim to territorial integrity exists and/or it is not clear whether an entity meets the statehood criteria.226 However, recognition of Kosovo, though granted by a significant number of states, is far from universal. It is therefore questionable whether the attempt at state creation was successful. Furthermore, it may well be that recognition did not solve but actually created the ambiguity in regard to Kosovo’s legal status.227 Before the number of recognitions was granted, it was clear that Kosovo was not a state. This is now unclear and remains unclear even after the Kosovo Opinion. Ambiguity may also follow from recognition texts, as it may be questionable whether Kosovo is actually recognised as a fully independent state. The recognition text of the Swedish government, inter alia, stated: “A difficult and demanding process is now being started to build a Kosovan State that builds international requirements.”228 According to Warbrick, the Swedish proclamation perhaps best summarises the real attitudes of the recognising states – it “leaves open the possibility that the process of establishing a State ‘that meets international requirements’ might not be completed.”229 It is, however, questionable if this necessarily implies that Kosovo is not a state or that the recognising states did not recognise Kosovo as a state. Indeed, recognition of a new state implies the belief that a new      

See note  above. See note  above. Compare notes  and  above. See notes  and  above. Compare note  above. See, “Sweden Recognises the Republic of Kosovo,” Ministry of Foreign Aff airs Press Release,  March . Accessed  January . http://www.sweden.gov.se/sb/ d//a/.  Colin Warbrick, “Kosovo: The Declaration of Independence,” International and Comparative Law Quarterly  (): .


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

state exists, not the belief that an entity has good prospects of becoming a state in the future. What is, nevertheless, significant in this particular situation is that the recognition texts commonly refer to Kosovo’s commitment to the Ahtisaari Plan and to Resolution 1244,230 both of which severely curtail Kosovo’s 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 recognition 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 recognise 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 difficulties, 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: [T]he exercise of delegated powers pursuant to protectorate arrangements is not inconsistent with statehood if the derogations from independence are based on local consent, do not involve extensive powers of international control and do not leave the local entity without some degree of influence over the exercise of its foreign affairs.233

The question of whether Kosovo is a state, although it emerged as an internationally protected state, would then depend on the position one takes in regard to the problem of the (non-)independence of Kosovo’s government and the continuous presence of international territorial administration. In other words, one needs to consider the statehood criteria again. But the argument then becomes circular: it is the problem of the failure to meet the independent government criterion and not the emergence of an internationally protected state per se which casts doubts on Kosovo’s status as a state.  See, inter alia, the recognition texts of the United States. Accessed  January . http:// georgewbush-whitehouse.archives.gov/news/releases///-.html; the United Kingdom. Accessed  January . http: //www.number.gov.uk/Page; Germany. 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/minpub/Publication.aspx?lang=eng&publication_id=&docnum=.  See above, Chapter .b.  See notes - above.  Crawford, note  above, .

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Although seventy two states have granted recognition and some of the recognising 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 Kosovo’s 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 parent 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 differ and there is no universally accepted interpretation 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 FRY’s claim to territorial integrity existed then and Serbia’s claim to territorial integrity exists now. The government which declared independence in 1991 was not the effective government of Kosovo. The government which declared independence in 2008 was not an independent government of Kosovo. Similar legal considerations to Kosovo’s 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 recognition has been granted by seventy two states.

 See note  above.


Chapter 5, Jure Vidmar – Kosovo: Unilateral Secession and Multilateral State-Making

The most probable answer is that in the case of Kosovo an informally practised collective recognition aimed to have the effects 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 differently, if recognition has constitutive effects, are seventy two recognitions enough for a state creation? Whose and how many recognitions 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 Kosovo’s statehood has not been consolidated might have some merit,235 all the more so because Kosovo’s statehood does not seem to be disputed 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 Kosovo’s statehood. One interpretation could therefore be that the informally practised collective recognition did not attempt to create a fully sovereign state but rather an internationally 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 significant restraints 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 significant 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 perception of Kosovo’s legal status owes predominantly to recognition and to broader international involvement in the Declaration of Independence.

 See note  above.

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Chapter 6

Self-Determination and Minority Protection after Kosovo

HELEN QUANE

1

Introduction

Kosovo’s Declaration of Independence1 is often viewed as the final phase in a process that began with the violent break up of the former Yugoslavia. Opinion is divided, however, on its legal significance. For some states, Kosovo establishes a dangerous precedent especially for frozen conflicts 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 administration and the ongoing role envisaged for the international community post-independence.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

    

The Declaration of Independence was adopted on  February . It is available from www.assembly-Kosovo.org/?cid=,,. Last accessed  October . See www.Kosovothanksyou.com. Accessed  November . See further, notes - below. See further, note  below. Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Advisory Opinion) available from http://www.icj-cij.org/docket/index. php?p=&p=&code=kos&case=&k=. Last accessed  October . See, e.g. the debate surrounding the adoption of General Assembly Resolution /, UN Doc. A//PV. ( September ).

James Summers. (ed.), Kosovo: A Precedent? © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 181-212.


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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 significance 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 Independence 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 community’s response to Kosovo and each one has its own significance in terms of the development of international law on self-determination and minority protection. Broadly speaking, the first phase comprises the period 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 community’s emphasis on halting the repression and humanitarian crisis in Kosovo while promoting a settlement that would ensure “meaningful self-administration”8 for Kosovo within the Federal Republic of Yugoslavia (“FRY”). The second phase begins with the mandate for the international administration of Kosovo, encompasses the development 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-General’s Special Envoy for the Future Status of Kosovo. The international community’s 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 features 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 specific context of Kosovo, and the ICJ’s 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 Kosovo’s 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 assessing its legal significance, it must be placed in its wider context. Over the past ten years, there have been far-reaching developments concerning the right to selfdetermination 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 underdeveloped and uncertain component of the self-determination principle in international law.9 More radically, there has been some departure from the purely territorial   

See UN General Assembly Resolution / adopted by consensus. See, e.g. SC Res. , UN Doc. S/RES/ ( March ). See, further, Helen Quane, “Rights in Conflict? The Rationale and Implications of Using Human Rights in Conflict Prevention Strategies,” Virginia Journal of International Law


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

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 significance 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 contributing to the evolution of the right to self-determination and minority protection in international law. 2

Phase I: The International Community’s Response to the Conflict and Humanitarian Crisis in Kosovo Prior to June 1999

One of the most striking features of this phase is the international consensus on upholding the territorial integrity of the FRY notwithstanding its repression of the Kosovo Albanians12 or their clear wish for independence.13 As the Kosovo Albanians continually “insisted on their right to self-determination,”14 international opposition

 



 

 (): , -, and Annex, paras. A-C. See Article  of the UN Declaration on the Rights of Indigenous Peoples adopted by the General Assembly in  by a vote of  in favour, four against and  abstentions. See UN Docs. E/CN.// (); E/CN.// (); E/CN.// (); E/CN.// (); A//PV. ( September ); and A//PV. ( September ). See, e.g. Statement by the President of the Security Council, UN Doc. S/PRST// ( Sep. ); UN Security Council Resolution , UN Doc. S/RES/ ( March ), preambular paras. , , operative para. ; , UN Doc. S/RES/ ( September ), preambular paras. , , operative para. ; , UN Doc. S/RES/ ( October ), preambular paras. , ; Statement on Kosovo adopted by the members of the Contact Group,  March , paras. , -, ; Joint Declaration of the Ministers of Foreign Affairs of Countries of South-Eastern Europe concerning the situation in Kosovo, Sofia,  March , paras. , ; Conclusions of the Council of the European Union on the crisis in Kosovo,  April , UN Doc. S// ( April ); and Cardiff European Council: Declaration on Kosovo,  June . See Report of the Secretary-General prepared pursuant to Resolution  () of the Security Council,  July , UN Doc. S// ( August ), para. . See Report of the Secretary-General prepared pursuant to Resolutions  () and  () of the Security Council,  November , UN Doc. S// (), para. .

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to independence for Kosovo is significant for several reasons.15 In terms of the right to external self-determination, it reaffirms 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 defines a people as the entire population of a state or colony. It is also significant in terms of gauging international support for the existence of a remedial right to external selfdetermination.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 discussion 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, “firmly opposed to independence.” See Cardiff European Council: Declaration on Kosovo,  June . The International Contact 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. . Reflecting 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.  (emphasis added). See also, debates within the Security Council, UN Doc. S/PV. ( October ) (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 Edition (Oxford: Clarendon Press, ), -; Alain Pellet, “Legal Opinion on Certain Questions of International Law Raised by the Reference,” in Self-Determination in International 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 existence of a right to remedial self-determination in the specific 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 justified on the grounds of halting the violence, supporting the completion of negotiations on a political 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 accompanying notes - and - below.


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

Admittedly, the international community did not preclude any negotiated outcome provided it was acceptable to both parties.19 This is hardly surprising and entirely 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 different 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 first phase would appear to have simply confirmed the existing contours of the right. In terms of the internal dimension to self-determination, the picture is more complex. The international community’s 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 specific context of self-determination 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 international community. On balance it is doubtful whether, at this point in time, the international community’s support for autonomy for Kosovo can be equated with recognition of a limited right to internal self-determination for the Kosovo Albanians. A review of state practice at this time suggests that, rather than reflecting 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 consistent 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 autonomy was regarded as one possible means of protecting minorities and was viewed 

   

See, e.g. SC Res. , UN Doc. S/RES/ ( March ), operative para. ; and Statement on Kosovo adopted by the members of the Contact Group,  April , para. . See, e.g. SC Res. , UN Doc. S/RES/ ( March ), operative para. ; and , UN Doc. S/RES/ ( September ), preambular para. . See, e.g. UN Docs. E/CN.// () and E/CN.// (). Statement made by the Secretary General to NATO, Brussels,  January , UN Doc. SG/SM/. See, e.g. Security Council Resolution , UN Doc. S/RES/ ( March ), operative para. ; Statement issued by Members of the Contact Group, Bonn,  March

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within the framework of minority protection rather than self-determination.24 Further, the OSCE’s references to “autonomous administrations corresponding to the specific historical and territorial circumstances”25 of national minorities has a certain resonance in the Kosovo situation. As numerous states observed,26 Kosovo had long been an autonomous region within the Socialist Federal Republic of Yugoslavia until its autonomy was removed unconstitutionally by the Serbian authorities. Viewed in this context, the international community’s support for autonomy in Kosovo can be regarded as a pragmatic response to the crisis27 formulated within the framework of individual and minority rights28 and reflecting the historical and constitutional development of the region rather than any attempt to radically extend the scope of the right to self-determination. At the same time, the functional basis to autonomy evident during this first phase offers a potentially useful pathway for developing the self-determination principle and state practice in the remaining two phases can be seen to build on it.29 Similarly, the recognition of the need for international involvement in any negotiations for a settlement during this phase30 took on



  



 

, para. ; and Joint Declaration of the Ministers of Foreign Affairs of Countries of South-Eastern Europe concerning the situation in Kosovo,  March , para. . See, e.g. Document of the Copenhagen Meeting of the Conference on the Human Dimension to the CSCE, , para. ; and Report of the CSCE Meeting of Experts on National Minorities, Geneva, , Part IV. Indeed, it is significant that the FRY referred to a solution based on, “broad autonomy in accordance with the highest international standards such as … the OSCE Copenhagen document,” as this document is clearly concerned with minority protection. See, UN Doc. S/PV. ( June ). Document of the Copenhagen Meeting of the Conference on the Human Dimension to the CSCE, , para. . See, e.g. discussion in the UN Security Council, UN Doc. S/PV. ( March ), (Egypt, Croatia, Slovenia). Note, the OSCE observation that the, “refusal of the Belgrade authorities to allow the Kosovo Albanians to play a meaningful role in governing their own affairs, and ongoing abuses of basic human rights are pushing member states of the OSCE to accept any kind of solution to the conflict which will assure the end of violence and prevent a possible spillover of the conflict”. See Information on the situation in Kosovo and measures taken by the OSCE, submitted pursuant to paragraphs  and  of Security Council Resolution  (), Annexed to the Report of the Secretary General prepared pursuant to Resolution  () of the Security Council, UN Doc. S///Add. ( September ). See also Statement of Foreign Ministers of NATO of  May  noted in the Report of the Secretary-General prepared pursuant to Resolution  () of the Security Council, UN Doc. S// ( June ), para. ; Statement by the President of the Security Council, UN Doc. S/PRST// ( January ); Communique issued by the Rio Group, UN Doc. S// ( March ); and discussions within the UN Security Council, UN Doc. S/PV. ( March ), (Bosnia and Hercegovina). See, further, text accompanying notes - and - below. See, e.g. SC Res. , UN Doc. S/RES/ ( September ), operative para. ; and Statement on Kosovo adopted by the Members of the Contact Group, Rome,  April , para. .


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

some significance in later phases particularly in terms of the possible evolution of the right to external self-determination.31 In comparison with the right to self-determination, there were significant developments during this phase in the sphere of minority protection. This is evident from an examination of the internationally brokered Rambouillet Accords32 which were accepted by the Kosovo Albanians but ultimately rejected by the FRY and Serbia. Of particular interest in the present context are its provisions on the rights of communities in Kosovo. The use of the term “communities” rather than “minorities” could in itself be seen as a useful mechanism to avoid the traditional, rather rigid dichotomy between a people and a minority in international law and the strictures it imposes. However, a more plausible explanation is that its use probably reflects the perception in some quarters that the concept of a minority applies only to states rather than provinces or regions within states.33 In any event, references to protecting, “national, cultural, religious, and linguistic identities”, of the different national communities in Kosovo34 suggest that the Accords were concerned with what would generally be regarded as minority protection. In this context, one of the most distinctive features of the Rambouillet Accords is the recognition that the national communities in Kosovo possess rights separate and distinct from those of their members.35 As such, it departs from the approach traditionally adopted at the international level whereby rights are conferred on persons belonging to minorities rather than on the minority groups themselves.36 In doing so, the Accords make some attempt to address the underlying policy concerns associated with the recognition of collective rights. By stipulating that the rights of communities shall not be used to endanger the sovereignty and territorial integrity of the FRY or the rights of citizens37 it goes some way towards addressing concerns that collective rights could encourage centrifugal tendencies or be used to trump individual human rights. There are also novel mechanisms requiring national communities to exercise their rights through democratically elected institutions38 and stipulating that members of national communities have the right to participate in these democratic institutions.39 This should help to guard against the risk that the members’ individual rights will be sacrificed in the interests of the group’s rights. It   

     

See further, text accompanying note  below. See UN Doc. S// ( June ). See Managing Multi-Ethnic Societies in the OSCE: The Case of Kosovo, Speech of Ambassador Werner Wnendt, Head of OSCE Mission in Kosovo to the OSCE Parliamentary Assembly Meeting,  October . Available from www.osce.org/documents/ mik///_en.pdf. Last accessed  October . Rambouillet Accords, Chapter I, Article VII, para. . Ibid. See, e.g. UN Declaration on the Rights of Persons belong to National or Ethnic, Religious and Linguistic Minorities . Rambouillet Accords, Framework, Article I, para. . Ibid. Chapter I, Article VII, para. . Ibid. para. (e).

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should encourage a dynamic approach to the development of a community’s identity. In terms of the content of these community rights, they reflect some of the highest international standards in the sphere of minority protection.40 Indeed, at times, they go beyond existing international standards as far less discretion is left to the authorities concerning the funding of minority language education or providing community access to public broadcast media41 while some provisions address issues such as inheritance and family matters42 that are not usually dealt with in international minority rights instruments. To conclude on this first phase, it seems that the emphasis on the traditional approach to self-determination was counter-balanced by an innovative approach to minority protection. This took the form of explicitly recognized collective rights for communities that extend in certain areas beyond the scope of the existing content of international minority protection standards. 3

Phase II: The Establishment of an International Interim Administration in Kosovo, the Development of Autonomy and the Beginning of Negotiations on its Future Status

UN Security Council Resolution 1244 (1999) marked a turning point in the international community’s response to the Kosovo conflict. While its adoption was undoubtedly motivated by a range of political considerations,43 its drafting and subsequent implementation have important ramifications for the right to self-determination in international law. Invoking Chapter VII of the UN Charter,44 it authorized the establishment of an international interim administration in Kosovo,45 the development of “self-government” for the territory within the FRY,46 and international involvement in a political process to determine its future status.47 The interim administration was duly established with the appointment of a Special Representative of the SecretaryGeneral (“SRSG”) and the creation of the UN Mission in Kosovo (“UNMIK”). Over time, Provisional Institutions of Self-Government (“PISG”) were created with pow



   

 

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

ers gradually being devolved to them by the SRSG in line with Resolution 1244’s 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 Kosovo’s status was fuelling political instability and impeding economic development in the region.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 territory. Each of these developments and the associated state practice is significant in assessing the extent to which this phase contributed to expanding the right to selfdetermination and minority protection in international law. As the UN Human Rights Committee has observed, internal self-determination 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 entire 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 FRY’s agreement 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 presence and suggestions that one should be concluded were rejected by the SRSG on the ground that UNMIK’s mandate was based on Chapter VII of the Charter rather than on the FRY’s 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 affairs, 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 ).

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Resolution 1244 is also significant in terms of its possible contribution to the development of a right to internal self-determination for the people of Kosovo54 particularly 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 community’s policy during the previous phase, there are some important differences. It is notable, for example, that there is a shift in language from supporting “meaningful self-administration”55 to supporting “self-government”56 in Kosovo. It is the first 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 Declaration on the Rights of Indigenous Peoples,59 it is questionable whether one can dismiss 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 Kosovo’s “right to substantial self-government,” it argued against recognizing Kosovo independence as it would, “transform the right to 



  

 

See also, Andreas Zimmermann and Carsten Stahn, “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo,” Nordic Journal of International Law  (): -, and Friedrich, note , , albeit for different reasons to those canvassed here. For a different 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 subsequently referred to Article  in its recognition of an independent Kosovo. See, Statement on the Recognition of Independence of Kosovo,  February , available from www.Kosovothanksyou.com. Last accessed  October . The analogy between Kosovo 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 Western 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 ), (Malaysia); S/PV. ( June ), (Pakistan); and S/PV. ( May ), (Switzerland).


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

self-determination into an avowed right to independence.”61 It suggests that while the people of Kosovo might have a limited right to internal self-determination it did not extend to external self-determination. Clearly, one has to be cautious in assessing the significance of this state practice particularly when so few states commented on the self-determination issue. Nevertheless, the state practice that does exist on this issue suggests that there was increased support, even from the state whose interests were most directly affected, for the people of Kosovo having a right to some form of internal self-determination. This shift in approach is consistent with trends in state practice at the global level which demonstrate an increasing level of support for a limited right to selfdetermination for groups within states. Of particular significance in this regard is the UN Declaration on the Rights of Indigenous Peoples. Its drafting history reveals that opposition to a right to internal self-determination for indigenous peoples had fallen away during this period although concerns about the practical implementation of the right and possible implications for territorial integrity delayed the adoption of the Declaration until September 2007.62 There are also some references to a limited right to self-determination for other types of groups in some of the state reports submitted under the International Covenant on Civil and Political Rights.63 Admittedly, these are fairly isolated references and may be a reflection of the particular constitutional traditions of the states concerned or the consequences of specific conflicts. It is interesting to note, however, one state’s observation that the right to self-determination “is evolving to include a right for groups living within existing states which qualify as peoples under international law that respects the political, territorial and constitutional integrity of the state.”64 For the present, one can only speak with confidence of an evolving right to internal self-determination for indigenous peoples. The emergence of a similar right for other groups is still contentious although the Kosovo case-study may be a significant precedent in contributing to its development. Underpinning these global developments is the idea that there should be some objective justification for the recognition of even a limited right to self-determination for groups within states. This is usually formulated as the need to protect the  





See UN Doc. S/PV. ( March ) (emphasis added). See further, Helen Quane, “The UN Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?” in Reflections on the UN Declaration on the Rights of Indigenous Peoples, eds. Stephen Allen and Alexandra Xanthaki (Oxford: Hart, ). See UN Docs. CCPR/C/UZB// (Uzbekistan); CCPR/C/BIH/ (Bosnia-Herzegovina); CCPR/C/LIE// (Liechtenstein); CCPR/C/RUS// (Russian Federation); CCPR/C/GEO// (Georgia); and CCPR/C/SDN/ (Sudan) concerning non-Indigenous Peoples. Canada’s Responses to the List of Issues, Presentation of the Fifth Report on the International Covenant on Civil and Political Rights, Human Rights Committee, October , . Available from http://www.ohchr.org/english/bodies/hrc/docs/replycanada. doc. Last accessed  October .

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identity of the group and/or their fundamental rights and freedoms.65 The international community’s 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 ongoing legacy of that repression. While this may be seen to uphold the idea of a remedial 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 negotiations 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 incompatible with the recognition of a remedial right to external self-determination for the Kosovo Albanians,68 it is significant 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-determination. It occupies a middle ground between absolute adherence to the principle 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 reflected 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 international human rights standards while its underlying rationale enables a distinction to be drawn between protecting the legitimate interests of minority groups and encouraging ethno-nationalist secessionist claims. By focussing on the effective 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/BBFCFB-D-EC-CD-CFEFFFFD/KosStatementin LondonbytheContactGroupJan.pdf. Last accessed  October . See note  above. See notes - below. See note  below.


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

approach. It is significant 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 Independence, 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 prevailed to date and which has done little to facility the prevention or resolution of internal conflicts. 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 independence for the people of Kosovo.71 Significantly, 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 effective implementation 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 absolute approaches to self-determination and little to facilitate compromise in resolving conflicts arising from competing self-determination claims. The vast majority of states, however, made no reference to the right to self-determination during the debates on Kosovo’s future status. Instead, the tendency was to refer to the need for a political settlement that was “acceptable to” or that “reflected 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 reflect 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, Denmark and the Russian Federation: UN Docs. S/PV. ( February ), S/PV. ( September ), S/PV. ( December ), and S/PV. ( June ).

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situation at least during this particular period. The first 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 reflects 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 maintained. Consequently, the Russian Federation’s approach simply reaffirms 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 support for a negotiated settlement, seemed willing to countenance independence for Kosovo in the event of negotiations failing.76 This change of policy was justified on the ground that the Kosovo situation was sui generis due to the extended period of international administration, the events surrounding the SFRY’s disintegration, and the ethnic cleansing and humanitarian crisis of 1998/1999.77 It also reflected the widespread perception that the ongoing uncertainty about Kosovo’s status was unsustainable and was fuelling instability in the region. Viewed in context, this particular state practice appears more as an ad hoc response to the exigencies of a specific situation rather than any attempt to expand the right to external self-determination beyond its current confines. 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 community 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/ContactGroup-TenGuidingprinciplesforAhtisaari.pdf. Last accessed  October .


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

could be found in the Rambouillet Accords. Even so, this development still has some significance 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 classified as a minority could become a people at least for certain self-determination 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 afforded 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 reflect 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 keeping 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 affirmation 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 communities 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. ..

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content, can be exercised concurrently. This means that an individual is not dependent on the group for the enjoyment of their rights. In the present context, this is significant 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 Kosovo’s future, and indeed that of Serbia, lay within the European Union84 and that any political settlement should reflect common European 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 conflict. What emerges during this period is that more conventional approaches to minority protection were counterbalanced by significant 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 justification 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 currency 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 undermines 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, Kosovo’s Declaration of Independence in the third and final 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 important 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 Kosovo’s existing status unsustainable, the Secretary General’s 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

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 community’s engagement in Kosovo. The Plan was accepted by Kosovo but rejected by Serbia.87 Following other unsuccessful attempts to reach a settlement,88 the Declaration 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 Kosovo’s international status, structure of government, protection of minority communities and the maintenance of an international presence post-independence.90 This, combined with the entry into force of a new Constitution 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 remainder 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/ReportoftheEU-US-RussiaTroikaonKosovo.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 between September and December . See Statement of Troika Meeting with Belgrade and Pristina, New York,  September , Report of the EU/US/Russia Troika on Kosovo,  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, Switzerland, Austria, Ireland, Sweden, Netherlands, Iceland, Slovenia, Finland, Japan, Canada, 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 expressed “concerns” about the unilateral declaration of independence. See, e.g. UN Docs. S/PV. ( November ), (South Africa); and A//PV. ( October ), (Comoros).

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community so divided, the UN has adopted a “status neutral” approach to Kosovo.95 In the midst of this deadlock, attention shifted to the International Court of Justice with the General Assembly’s request for an Advisory Opinion on whether the Declaration was in accordance with international law.96 Following the Court’s ruling that the Declaration was not prohibited by international law, the focus has shifted back to the political arena with General Assembly Resolution 64/298 welcoming the prospect of renewed negotiations between the parties. The present section analyses this complex body of international practice both in terms of its significance for the right to external self-determination and, to a lesser extent, the right to internal selfdetermination and minority protection in international law. a

The International Response to the Declaration of Independence: General State Practice

It is possible to identify several distinct approaches from the numerous recognition statements as well as statements made during the relevant Security Council and General Assembly debates. The first is that the Declaration of Independence violates international law and consequently should not be recognized. In particular, the argument is made that independence violates the principle of respect for the territorial integrity of states set out in the UN Charter.97 Independence is also regarded as a violation of Security Council Resolution 1244.98 For this group of states, there is no question of recognizing a right to external self-determination for the people of Kosovo. At the same time, they have expressed serious concerns that Kosovo could become a dangerous precedent by encouraging secessionist claims in other parts of the globe.99 According to a second approach, the parties should resume negotiations on the status of Kosovo notwithstanding the Declaration of Independence.100 Implicit in this approach is that there must be some consensual basis to any resolution of the status issue. This is entirely in keeping with the traditional approach to external self-determination and would limit the prospect of Kosovo serving as a negative precedent for secessionist groups elsewhere. For the present, it is open to question whether this approach has a realist prospect of implementation. At the same time, one cannot exclude the possibility entirely. Given the general consensus that the fu    

See UN Doc. S/PV. ( June ), (Secretary-General). See GA Res. /, UN Doc. A/RES// ( October ). See, e.g. UN Doc. S/PV. ( June ), (Russian Federation, Serbia). See UN Doc. S/PV. ( June ), (Serbia). As Serbia observed in an address to the General Assembly, “there are dozens of Kosovos throughout the world”, and many of these conflicts, “could escalate, frozen conflicts … reignite, and new ones could be instigated”. See Statement by the President of Serbia to the UN General Assembly,  September . Available from www.un.org/en/ga// generaldebate/pdf/Serbia_en.pdf. Last accessed  October .  See, e.g. UN Docs. S/PV. ( June ), (Vietnam); S/PV. ( November ), (Indonesia, China); and A//PV. ( October ), (Singapore).


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

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 final 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 world’s 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 significance 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 previous 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 significance in terms of the right to external self-determination. Again, this would not be an entirely accurate reflection 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 international administration, the implications of the disintegration of the SFRY, the ethnic cleansing and the humanitarian crisis.102 Others referred to the abolition of Kosovo’s  See, e.g. UN Docs. S.PV.  ( May ), (US, UK); A//PV. ( October ), (France); Announcement by the Minister of Foreign Affairs of the Republic of Latvia on recognition of Kosovo’s independence,  February , available from www.mfa. gov.lv/en/news/press-releases//february/-february; Statement to the Chamber of Deputies, Luxembourg,  February , available from www.kosovothanksyou.com, Press Statement issued by the Polish government,  February , available from www.premier.gov.pl/en/press-centre/news/id:; Statement by the President of the Swiss Confederation,  February , available from www.kosovothanksyou.com; Press Release by the Canadian government,  March , available from www.international.gc.ca/media/aff/news-communiques//.aspx?lang=en; Press Release by the Hungarian government,  March , available from www.mfa.gov.hu; Lithuanian Resolution on the Recognition of the Republic of Kosovo,  May , available from www.kosovothanksyou.com; and Press Release by the Austrian government,  February , available from www.kosovothanksyou.com. All websites last accessed  November .  See, e.g. Press Release by the Canadian government,  March . Available from www.international.gc.ca/media/aff/news-communiques//.aspx?lang=en. Last accessed  October .

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constitutional rights and the UN process for a negotiated settlement to distinguish Kosovo from other conflicts in South Ossetia, Abkhazia and the Moldovan Republic of Transdniestria.103 For the majority of these states, no reference was made to the right to self-determination. However, for some states, the sui generis nature of Kosovo was cited to explain why they had given “precedence to the principle of selfdetermination.”104 For these states, it seems that a balance had to be struck between the principles of territorial integrity and self-determination and in the particular circumstances of Kosovo that balance had been struck in favour of the self-determination principle. Others simply referred to a right to self-determination for the people of Kosovo without any qualification about its sui generis character.105 It follows that one cannot dismiss the significance of this state practice. At the same time, one has to be careful about overstating its importance given the extent of this practice. Nevertheless, when taken in conjunction with the Written Statements submitted during the Advisory proceedings before the ICJ, it may signal an important shift in thinking about self-determination at least on the part of a not insignificant group of states. b

The International Response to the Declaration of Independence: The Proceedings and Advisory Opinion Relating to the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for an Advisory Opinion)

The Written Statements submitted to the Court during the course of the Advisory proceedings provide invaluable insights into state thinking on a range of fundamental issues. In contrast to the rather general statements made during the course of the UN debates or in the recognition statements, these Written Statements are far more comprehensive and precise in their treatment of the legal issues raised by the Declaration of Independence. This is hardly surprising given the context in which they were formulated and the significance of the interests at stake. For example, states no longer confined themselves to a general discussion of the compatibility of the Declaration with the principle of territorial integrity but discussed at length the extent to which the principle applies to non-state actors under general international

 See Statement to the Chamber of Deputies, Luxembourg,  February , available from www.kosovothanksyou.com. Last accessed  October .  See Press Release concerning the statement by the Minister of Foreign Affairs for the Maldives, available from www.kosovothanksyou.com. See also Statement by the Minister of Foreign Affairs for Sweden,  March , available from www.kosovothanksyou. com. Last accessed  October .  See, e.g. Afghanistan’s Statement on the Recognition of Independence of Kosovo,  February , available from www.kosovothanksyou.com; Statement of Prime Minister of Albania on Recognition of Independence of Kosovo, available www.kosovothanksyou.com; Statement by Burkina Faso,  April , available from www.kosovothanksyou.com; and Press Statement of UAE government, available from www.wam.org. ae. Last accessed  October .


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

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, acquired a heightened importance which was reflected in the Written Statements.107 In the present context, however, what is significant 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 overwhelming 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 approaches to the right. The first asserts that there is no right to independence outside the colonial context.109 This implies a continuing adherence to the traditional interpretation of self-determination whereby only colonial peoples (and peoples organised 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 first 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 internal 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 first substantial body  See, e.g. Written Statements of United Kingdom, United States, France, Germany, Japan, 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 Slovak 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 , , .

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of state practice to explicitly recognize such a right outside the indigenous context. Although it would be premature to regard these statements as reflecting customary international law, one cannot deny their potential significance in terms of its future development. For several States, this right to internal self-determination was linked to a remedial 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-determination “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 external 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 satisfied prior to the exercise of a remedial right to external self-determination. 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 internal 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  See Written Statements of Estonia, Finland, Germany, Netherlands, Poland, Switzerland, Ireland (April ) and Written Statement of Albania,  July . In contrast to the approach of the ICJ which seemed to distinguish between external self-determination and remedial secession, the concepts were used interchangeably in the Written Statements: see, e.g. Written Statement of Poland, April . The Russian Federation did not link the right with internal self-determination confining it instead to “truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question:” see Written Statement of Russia,  April . Denmark, while acknowledging that the implications of self-determination are, “not yet fully developed in international practice”, saw no reason why the denial of internal self-determination in Kosovo in the late s should be deemed irrelevant to the independence claim: see Written Statement of Denmark,  April .  See Written Statement of Germany,  April , although it concedes that opinion among scholars is divided on the issue of external self-determination. Arguably, this line of reasoning is problematic in that it infers the right from the right to internal selfdetermination for groups within states even though the latter is not clearly established in international law.  See Written Statements of Estonia, Germany, Netherlands, Poland, Switzerland (April ) and Written Statement of Albania,  July .  For example, that () there was a severe and long-lasting refusal of internal self-determination (Written Statements of Estonia, Finland, Germany, Netherlands, Switzerland (April ) and Written Statement of Albania,  July ), () grave violations of international human rights and humanitarian law (Written Statement of Poland  April , and Written Statement of Albania,  July ), () there must be a people which forms a majority on a part of the territory of the state (Written Statement of Albania,  July ) and () secession was an ultima ratio given the lack of other options (Written


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

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 divergent views expressed, it is difficult to argue that such a right currently exists in international 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 positions. Some regarded Resolution 1244 as embodying a form of internal self-determination 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 Albanians 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 first was simply that the right to







 



Statements of Estonia, Finland, Germany, Netherlands, Poland and Switzerland (April ) and Written Statement of Albania  July ). See Written Statements of Argentina, Cyprus, Iran, Slovak Republic, Azerbaijan, Romania, Spain (April ) and Written Statements of Bolivia,  July , and Serbia,  July . Significantly, most of the states that supported the right were European States. Others, such as France, did not discuss self-determination. Curiously, the UK refers to remedial self-determination but does not take a position on the right. Spain, Romania and Cyprus explicitly or implicitly rejected the right probably due to the particular circumstances in their respective territories although they would not necessarily block the development of a regional customary international law in Europe as they could be treated as persistent dissenters. See Written Statement of Russia,  April  where it concedes that the Security Council or some of its members implied a right to internal self-determination for the population of Kosovo in Resolution . See also Written Statement of Slovakia,  April , where it asserts that Resolution , “seems to set forth the framework for self-determination that does not include independence”, and Written Statement of Spain, July . It is also implicit in the Written Statement of Brazil,  April . Significantly, all these states were of the view that the declaration of independence was illegal. See text accompanying notes - above. See Written Statements of Estonia, Latvia, Finland, Maldives, Netherlands, Poland, Slovenia, Switzerland and Ireland (April ) and Written Statement of Albania,  July . The UK and the US did not consider it necessary to apply the concept to Kosovo: Written Statements of United Kingdom,  July , and United States of America,  July . See Written Statements of Estonia, Finland, Germany, Netherlands, Poland, Switzerland and Ireland (April ).

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self-determination in combination with other factors123 justified the Declaration of Independence. This leaves open the question whether, in the absence of these additional factors, the right would have justified secession. The second was that certain factors, such as the violent breakup of the former Yugoslavia, the repression in the territory in 1998-1999, the removal of its constitutional status as an autonomous region, the international administration and the UN led negotiations on a final settlement, render Kosovo an “abnormal”124 or “sui generis”125 situation. These factors were then relied on either to justify the departure from the presumption of territorial integrity and ensuing application of remedial self-determination126 or to supplement the application of the self-determination principle to the case at hand.127 Other states explicitly128 or implicitly129 rejected a right to external self-determination for the people of Kosovo. In doing so, some referred to the state practice in 1999 which, for them, suggested that the international community did not consider that the situation in Kosovo justified remedial self-determination.130 The remaining states did not address the self-determination issue or were of the opinion that it was not necessary to do so in order to respond to the General Assembly’s request.131 It demonstrates, as the Court itself observed, that there were “radically different views” on the issue.132 Consequently, it is difficult to assert, on the basis of the Written Statements, that the people of Kosovo had a clear right to external self-determination under international law. The Court’s Advisory Opinion did little to clarify the issue. Adopting a narrow interpretation of the General Assembly’s question, the Court confined itself to examining whether the Declaration of Independence was prohibited either under general international law or under Security Council Resolution 1244.133 It concluded

 See Written Statement of Latvia,  April . It is also implicit in the Written Statement of the Maldives,  April .  See Written Statement of Finland,  April .  See Written Statement of Estonia,  April . The Maldives and Slovenia also classified 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 Netherlands,  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

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-Government 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 principle was beyond its scope. Instead, the Court simply noted that “radically different views” had been expressed during the course of the proceedings on the scope of external self-determination and “remedial secession.”136 The Court’s 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 provision was formulated in the specific 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 territorial integrity unless one takes the position that there is a remedial right to selfdetermination 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 Assembly’s question but was quite possibly central to it. In contrast to the Court’s approach, there was some discussion of the right to self-determination in the Separate Opinions of Judges Cançado 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).

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effectively precludes any remedial right to external self-determination.141 The other judges took a different view. Both accepted some form of remedial external selfdetermination wherever a group experienced systematic repression, crimes against humanity or tyranny within a state.142 Of particular interest is the Separate Opinion of Judge Yusuf as he outlined in some detail what he considered to be the exact contours of such a right. For him, there was no question of any automatic right to external self-determination even where there was systematic repression.143 Instead, the group concerned had to meet “conditions prescribed by international law, in a specific situation, taking into account the historical context.”144 These included the existence of persecution, discrimination, the denial of autonomous political structures and access to government, as well as the exhaustion of all possible remedies for the realization of the right to internal self-determination.145 The involvement of the international community in the conflict was also considered to be of relevance.146 Although he refrained from making his own assessment, Judge Yusuf observed that there were several factors such as the violent break up of Yugoslavia, the removal of autonomy, the ethnic cleansing and the international administration, that made Kosovo “special in many ways” such that the Court could have decided whether it had a right to external self-determination.147 c

The Significance of the International Practice in Terms of the Development of the Right to Self-Determination

Given the complexity of the international response to the Declaration of Independence and ongoing developments in this area, one can see that Kosovo lends itself to several possible interpretations. Most in their own way reinforce the traditional interpretation of external self-determination either by rejecting unilateral independence for Kosovo or by limiting its significance by classifying it as a sui generis situation.148 Arguably, of more interest is a third approach which contains elements of both these approaches. By no means indicative of a very widespread trend in state practice, nevertheless it offers the prospect of a more workable approach to selfdetermination in situations of intense inter-communal conflict.  See para.  of his Dissenting Opinion.  See Separate Opinions of Judge Cancado Trindade, Kosovo Opinion, paras. -, and of Judge Yusuf, ibid. paras. -.  Ibid. para. .  Ibid. para. .  Ibid. para. .  Ibid.  Ibid. paras. , .  The argument that Kosovo’s independence has no basis in a legal right to external selfdetermination is supported by several academics. See, e.g. Ralph Wilde, “Kosovo – Independence, Recognition and International Law,” Chatham House International Law Discussion Group Meeting,  April , available from www.chathamhouse.org/ events/-/type/past/year/. Last accessed  October .


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

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 selfdetermination, human security and the general interests of humanity.149 Reference was made, for example, to the need to attach “equal weight” to Kosovo’s claim to self-determination and Serbia’s claim to maintain its territorial integrity.150 Indeed, one state went so far as to assert that in “recent decades, the right to self-determination 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 find 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 community’s 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 instability within the international community. However, it can be argued that the principle of territorial integrity should not automatically and in all cases trump self-determination 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 international community. The treatment of the Kosovo Albanians during the 1990s was

 See, Written Statement of Germany,  April ; Slovenia, UN Doc. S/PV. ( June ); Recognition of Kosovo by the Maldives, www.kosovothanksyou.com, (last accessed  October ); Statement by the Swedish Minister of Foreign Affairs recognizing Kosovo, www.kosovothanksyou.com (last accessed  October ); and Written Statements of Estonia, Finland, Poland, Norway, Slovenia and Switzerland (April ).  See UN Doc. S/PV. ( December ) (Ghana).  See Written Statement of Slovenia,  April .  See also Written Statement of the US,  April , where it refers to the need for the principle of territorial integrity in the Helsinki Final Act to be balanced and applied taking into account its other principles although it does not refer explicitly to the principle of self-determination.

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clearly the most important of these substantive factors.153 Within the present normative 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 community’s commitment to the territorial integrity principle. In practical terms, this precludes any unilateral right of secession. From a policy perspective, this should operate as a powerful 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 conflict 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 negotiations 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 first 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 principle 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 effects.  On the significance 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 repression 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 UK’s position that Serbia’s actions in adopting a new Constitution that unilaterally asserted control over Kosovo made successful negotiations impossible as it effectively tied the hands of the Serbian negotiators to the point where they could not even agree on the EU’s “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

Kosovo may establish a precedent although not necessarily a negative one for conflicts elsewhere. This is because where territorial integrity gives way to self-determination, 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 requirements 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 final phase reinforces the tendency to bring minority guarantees more into line with current international standards especially European standards. In addition to greater flexibility in implementation, minority guarantees are formulated purely within an individual rights framework.159 Equally important is the significance 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, affirms “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 binding commitments have gone some way to addressing international concerns about minority protection and to facilitating Kosovo’s entry into the international community. 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 specific 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 Nijhoff Publishers, ), -. Article  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.kosovothanksyou.com (last accessed  October ). On the importance of the minority guarantees 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, 

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that recognition was dependent on these guarantees.162 Notwithstanding the unilateral nature of these guarantees, it seems that in adopting them Kosovo was acceding to the demands of the international community.163 In this sense, Kosovo is evocative of state practice after World War I where recognition of several Central and East European states was made dependent on their acceptance of certain minority guarantees. On that occasion, they were justified by the need to maintain international peace and security and by the “public law of Europe.”164 As the then French President Clemenceau observed, it was a principle of the “‘public law of Europe’ that when a state was created … joint and formal recognition should be accompanied with the requirement that the state should comply with certain principles of government.”165 Notwithstanding the intervening passage of time, these observations continue to have a certain salience today. During both periods there has been a certain underlying assumption that since the international community would be called upon to intervene in the event of conflicts breaking out then it was entitled to impose certain conditions on the new entity to prevent the outbreak of such conflicts. Whether one classifies these conditions as an additional requirement of statehood, an element in discretionary recognition policies, some development of the right to internal self-determination or an additional requirement in any evolution of the right to external self-determination, it is likely to feature in any international response to future Kosovo-type situations given its strong underlying justificatory basis. 5

Conclusion

Attempts to classify Kosovo either as a dangerous precedent or as a sui generis situation do not sit easily with the relevant state practice. Arguably, they are a reflection of the international community’s current preoccupation with Kosovo’s Declaration of independence and its implications for the principle of territorial integrity. They do not reflect the complex and evolving nature of the international community’s





 

February , available from www.kosovothanksyou.com (last accessed  October ), and Press Release by Iceland’s Ministry of Foreign Affairs,  March , available from www.kosovothanksyou.com (last accessed  October ). See, e.g. the U.K. Prime Minister’s statement on  February  that: “the decision to recognize independence had depended on assurances that minorities within Kosovo would be protected under any new administration,” available from www.kosovothanksyou.com (last accessed  October ). Indeed, this was mentioned explicitly in the statement to Luxembourg’s Chamber of Deputies on  February , available from www.kosovothanksyou.com (last accessed  October ). See also Press Release of the Irish Ministry for Foreign Affairs ( February ). Accessed  October . www.kosovothanksyou.com. See Papers relating to the Foreign Relations of the United States (), volume IV, . See Harold W. V. Temperley, A History of the Peace Conference of Paris (London: Oxford University Press and Hodder and Stoughton, ), volume IV, -.


Chapter 6, Helen Quane – Self-Determination and Minority Protection after Kosovo

engagement with the territory and its significance not only for the right to external self-determination but also for the right to internal self-determination and minority protection. The full significance 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 concerning self-determination and minority protection. Kosovo has several important implications for the right to internal self-determination. 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 significant, 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 justificatory basis to these developments with recognition 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 fundamental rights and freedoms of these groups. While this is reminiscent of the concept of a remedial right to self-determination, it departs from it in one fundamental 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, Kosovo’s Declaration of Independence may be seen to undermine its significance in this respect. However, the fact that the vast majority of states have not recognized Kosovo’s 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 difficult to draw any definitive conclusions about Kosovo’s significance. So far, there have been at least four different approaches to Kosovo’s Declaration of Independence. Most in their own way tend to reinforce the traditional approach to external self-determination. The first regards the Declaration as a violation of international law thereby precluding 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 final settlement in line with the traditional approach to external selfdetermination 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

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that recognition of its Declaration of independence is simply an ad hoc response to the exigencies of the situation rather than an attempt to expand the right to external self-determination in international law. The fourth also stresses the sui generis nature of Kosovo but contains within it the seeds of a new normative approach to external self-determination. According to this approach, a balance must be struck between claims to territorial integrity and to self-determination. While the principle of territorial integrity will normally be given priority, occasionally, in exceptional cases, priority will be given to self-determination claims. For this to happen, a range of substantive and procedural conditions must be met. At a minimum, the substantive conditions would include a severe and long-lasting denial of internal self-determination as well as grave human rights violations. Once this is established, procedural conditions include negotiations between the parties conducted in good faith within a reasonable timescale and, quite probably, with the active involvement of the international community. Viewed in this light, one can recognize both the precedent and sui generis character of Kosovo. To the extent that it contributes to the development of a new normative framework for reconciling self-determination and territorial integrity principles, it can be regarded as a precedent. At the same time, its sui generis character is evident in applying this normative framework to the specific circumstances of Kosovo. What Kosovo does not establish, even within this framework, is any absolute right to external self-determination for groups within states. Irrespective of how one classifies Kosovo’s independence, recognition seems to have been conditional on it assuming certain internationally binding guarantees for its minority communities. On the whole, these guarantees reflect existing international standards on minority protection with their emphasis on the individual nature of minority rights and with some amount of discretion being left to the state in their practical implementation. In this respect, Kosovo demonstrates that for the most part minority protection will continue to be formulated within an individual rights framework notwithstanding some innovative proposals concerning collective community rights during the first phase of the international community’s response to the conflict. It also demonstrates that, in certain instances, there can be some movement between the concept of a minority and the concept of a people. This is evident from the shifting perceptions of Kosovo Albanians as a minority and then a people with the possibility being envisaged during the second phase of them being a minority and a people concurrently. This is entirely in keeping with some tentative developments at the global level where reference is made concurrently to self-determination and minority rights for indigenous peoples. As such, it calls into question the rather rigid dichotomy that is traditionally drawn between peoples and minorities and the strictures it imposes in terms of their respective rights. It demonstrates how, in this as in so many other respects, Kosovo above all cautions against absolutes and zero-sum approaches.


Chapter 7

Post-World War 2 Exercises of SelfDetermination: “Peaceful”, “Friendly”, and “Other” 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 generate great interest, not least because it represents a new generation of exercises by peoples in self-determination.3 Kosovo’s unilateral move to secede territorially from Serbia is quite remarkable because, in order to avoid wider system chaos, the majority of international political and legal efforts in the post-1945 era have been devoted to confining ‘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 Constitution granted the province the status of a highly-autonomous federal entity, with representation in the federal institutions.5 When Kosovo’s 2008 UDI is viewed along-

 

See “Full text: Kosovo Declaration”,  February . Accessed  September . news.bbc.co.uk//hi/world/europe/.stm. See, e.g. Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, U.N. Doc. S// (); UN Doc. S/PV. ( June ),  (Serb Assembly members boycotted independence vote). As of July ,  out of  UN Member States () had formally recognised the independence of Kosovo, including  out of  EU member states, and  out of  NATO member states. “Background Note, Kosovo,” U.S. Department of State ( July ). Accessed  September . http://www.state.gov/r/pa/ei/bgn/.htm. The canon on self-determination is extensive, a comprehensive listing of which is found in the bibliography of Marc Weller, Escaping the Self-Determination Trap (Leiden: Martinus Nijhoff Publishers, ). A position rather less than a full republic but much more than mere autonomy. Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, ), .

James Summers. (ed.), Kosovo: A Precedent? © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 213-247.


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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, Serbia’s self-restraint since that time, in not resorting to armed force in response to this particular UDI, implies that Kosovo’s secession has – so far, at least - been accomplished ‘peacefully’.7 Kosovo’s recent bid for independence may constitute a highly controversial exercise 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 behaviour 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 different proposition: that questions of revolution, self-determination, and independence cannot be treated as having simple ‘right’ or ‘wrong’ answers, as to do so would only conflate solutions with causes. Inasmuch as self-determination holds a unique position in human affairs, and appeals to its rhetoric convey a sense of aspiration, a more subtle calculus in analysis is called for – one which acknowledges the burdens and benefits of differentiation 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 facilitate the generation of gyroscopic-style forces, which are capable of resisting wider, 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 rectify or re-adjust certain social relationships between themselves and broader groupings. Accordingly, when the Serb nationalist leader Slobodan Milošević engineered amendments to Serbia’s Constitution in 1989 to revoke Kosovo’s local autonomy and the minority rights of the province’s Albanian majority,8 the latter countered with a quest for self-rule which ultimately would involve the formation of a shadow Kosovo government, an armed conflict between Serb forces and the Kosovo Liberation

See, e.g. UN Doc. GA/AB/,  Assembly, Fifth Committee,  Meeting,  June,  (Budget Committee proposal to reduce UNMIK funding opposed by Serbia, as contradicting ‘status-neutrality’). Dajena Kumbaro, “Final Report. The Kosovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity, and the NATO Intervention,” (NATO Office of Information and Press,  June, ),  (reference to self-determination made continuously by Kosovo since ). See, e.g. Letters dated  March and  March , from the Permanent Representatives of the UK and the US, respectively, to the President of the Security Council (dismay expressed to Belgrade concerning repressive measures in Kosovo). Accessed  September . www.un.org/en/sc/repertoire/-/CHAPTER/Europe/___ European_E_KosovoandFederalRepublicofYugoslavia.pdf.


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

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 Framework 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 final settlement on “substantial self-government for Kosovo”.11 The temporary nature of this international presence, 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 territory of Yugoslavia.13 To help resolve the issue, the UN General Assembly at Serbia’s 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 Declaration 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 finding that no general prohibition exists in positive international law against declarations of independence, nor did the majority find any such prohibition in the international arrangements provided specifically for Kosovo. These conclusions were narrowly confined, however, and expressly side-stepped the twin parallel issues of entitlements to self-determination and ‘rights of revolution’.16 The ICJ majority thus implicitly acknowledged the limits of ‘law’ when ordering such human events as self-determination, particu  



 

 

The NATO air campaign lasted from  March to  June . SC Resolution , UN Doc. S/RES/ ( June ). SC Resolution . Cf. Author Archive, Marc Weller, “Legal Opinion on the Draft Proposal for a Settlement for Kosovo,” Journal of Humanitarian Assistance. ( October ). Accessed  September . jha.ac/author/marc-weller/. See generally the Report of Georgina Stevens, “Filling the Vacuum: Ensuring Protection and Legal Remedies for Minorities in Kosovo,” Minority Rights Group International ( May ); Ian Bancroft, “The flight of Kosovo’s minorities,” The Guardian,  June . See generally Weller, note  above. Request for an Advisory Opinion of the ICJ on whether the Unilateral Declaration of Independence of Kosovo is in accordance with International Law, GA Resolution /, UN Doc. A/RES// ( October ). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), () ICJ ( July). Ibid. paras. -. Contrast James Fawcett, “The International Protection of Minorities,” Minority Rights Group Report  (): Appendix C,  (adjudication of self-determination as a main protection at the international level).

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larly as the revolutionary potential inherent in the underlying principle of self-determination ascribes to the principle an often unpredictable, political content which even Cold War bi-polarity could not contain. On the contrary, as liberationist armed conflicts proliferated,17 the former Super Powers found certain ‘civil wars’ useful as proxies, and thereby avoided direct confrontation with each other.18 Similarly, it is still possible today to discern inter-state manipulation in the rapidly-multiplying international anti-terrorism commitments,19 and the highly-controversial draft UN Comprehensive Convention on International Terrorism.20 Accordingly, the state self-interest and commercial rivalry sourced today in the greater flexibilities of the post-Cold War era ensure that a convenient blurring in legal distinction is perpetuated when the time arrives to condemn the use of violence in liberationist struggles in general, or to assist the ‘rightful cause’ sought in particular cases. As new alliance and resource opportunities arise, space is invariably opened-up for ‘peoples’ to generate sufficient leverage to pursue alternative formats for a life in common, yet the means and methods adopted for achieving rapid and/or revolutionary system change generally have one clear and timeless goal: to out-manoeuvre the opposition. This makes the General Assembly’s request to the ICJ appear to have been not so much a logical ‘next step’ in terms of diplomatic formalities,21 but instead, disingenuous politics. Moreover, to the extent that wider issues could not (or should not) have been dealt with by the ICJ, the request for an advisory opinion may equally be viewed for what it essentially was: a stalling tactic, to deflect attention from the fundamental absence of international agreement regarding certain factual situations which cannot ever be prohibited or deterred by ‘law’ alone.

 







For the period -, see Patrick Brogan, World Conflicts (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-Terrorism 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-Colonialism,” 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 International 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”

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 first 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 offensive 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 Kosovo’s 2008 bid for independence, there is little doubt that the manner in which the Court framed and determined the issues it deemed capable of adjudication will prove to be of great interest and controversy for some time to come, but it must also be hoped that the ICJ’s opinion will prove to be persuasive far beyond the more sterile analyses and criticisms which no doubt will greet it, such that the opinion will ultimately assist in developing more effective 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 specific objective is to examine and situate the ‘peacefulness’ of the latter’s UDI within the wider factors which give rise to demands for system change. Specifically, three extra-legal dimensions of international life are utilised to illustrate the ways in which self-determination plays a role akin to a ‘canary-in-the-mine’ for detecting certain emerging themes in international relations. Secondly, the traditional pre-conditions to entitlements of self-determination are outlined, in order to situate the ICJ’s recent opinion on Kosovo’s UDI within the self-determination canon. Finally, the legal distinctions between ‘war’ and ‘peace’ are discussed, in order to illustrate how ‘friendly’ or ‘peaceful’ exercises in self-determination can so easily degenerate into a ‘no-holds-barred’ armed conflict which is the most dangerous scenario for all involved. 2

Self-Determination as Reflective of International Relations

By way of foundation to the following discussion, it must be pointed out that, just as there can be no simple question-answer approach to self-determination, there is no one single compelling model of governance, either in fact or in law. Similarly, there is no single model at any level for ‘ideal’ political and/or economic relationships; on-going challenges to an existing social order will reflect instead the availability of alternatives. That is why the UN places so much importance on the organisation’s twin purposes of maintaining inter-state peace, and of preserving mutual state non-interference in each other’s domestic affairs. However greatly the latter principle contributes to the former, each principle is conditioned further by an over

The United Nations Today (New York: United Nations Department of Public Education, ), . Accessed  September . www.unic.org.ar/mat-didactico/UN_TODAY_ BOOK.pdf.

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arching Charter purpose to base future friendly relations on, “respect for the principles of equal rights and self-determination of peoples”.23 This conditioning effect 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 reflects variations in approach to domestic state governance, as is now discussed in the context of the politics of self-determination. a

Some Preliminary Issues

Prior to the UN era, war could change the law as easily as it could alter territorial boundaries.24 Since 1945, the inter-state use of force has been much more heavily circumscribed by the UN Charter, such that territory cannot lawfully be acquired by force alone,25 and alterations to international law occur primarily after negotiation and/or state consent.26 Moreover, the Charter leaves the maintenance of domestic state order to individual states, yet is silent as to ‘which peoples’ may claim rights to exercise their self-determination, the rights affected by such exercises, and the parameters for uses of domestic armed force. This means the UN can do little to order the domestic order in individual states unless the Security Council decides to take action.27 On the other hand, once international peace and security have been disturbed by domestic state upheaval, it becomes much more likely that one or other UN organ will begin to study the relevant issues involved. If the upheaval persists, it is then much more likely that the ‘niceties’ of non-interference will be whittled away, and individual third states may or may not continue to abstain at that point from comment and/or action regarding the situation.28 Accordingly, issues of self-determination within states will often reflect three inter-connecting extra-legal dimensions of international life – the political, the economic, and the social/cultural, which dimensions are more amenable to consideration jointly and severally in the context of social justice; in contrast, histori  



 

Articles () and , UN Charter. See, e.g. Elizabeth Chadwick, “It’s War Jim, but not as We Know It: A ‘Reality-Check’ for International Laws of War?” Crime, Law and Social Change () (): -. UN Charter, Articles (), , and Chapter VII generally. See also SC Res. , UN Doc. S/RES/ ( November ); GA Res.  (XXV), UN Doc. A/RES/ ( October ), and Res.  (XXIX), UN Doc. A/RES/ ( December ). But see UN Charter, Article . Cf. Luis Miguel Hinojosa Martinez, “The Legislative Role of the Security Council in Its Fight against Terrorism: Legal, Political and Practical Limits,” International and Comparative Law Quarterly  (): . Within the confines of UN Charter, Chapter VII. As noted by Shaw, “international law treats civil wars as purely internal matters, with the possible exception of self-determination conflicts”. Malcolm Nathan Shaw, International Law, Sixth Edition (Cambridge: Cambridge University Press, ), . See also Ingrid Detter de Lupis, The Law of War (Cambridge: Cambridge University Press, ), -.


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

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 reasons. 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. Specifically, non-interference recognises 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 suff 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 principle 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 configuration becomes effective, a subject population will be expected to acquiesce and obey, whether 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 discriminatory status differentiations 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 effects 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 (first published London: Awnsham Churchill, ), while for Emmerich de Vattel’s The Law of Nations (), ‘just’ revolution influenced ‘just war’ theory. Analogously, occupation law requires obedience, not allegiance. See Geneva Convention 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 Regulations, Section III. Martin Griffiths, “Self-Determination, International Society and World Order,” Macquarie Law Journal (): , at text accompanying note . Mark Duffield, “Global Civil War: The Non-Insured, International Containment and Post-Interventionary Society,” Journal of Refugee Studies  (): , at section entitled, “The Strategic Nature of Development”.

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those struggles into progressive developments.33 Equally, the decolonisation agenda constituted a handy mechanism for resisting largely Western-style economic and bureaucratic control, but since the end of the Cold War, certain regions have once again been opened to new external sources of influence, such that the de-legitimisation of much non-state violence since 9/11, and the imposition of global obligations, e.g., to end the financing of ‘terrorism’, are again likely to upset traditional life, and the financial patterns on which that life depends for survival.34 Of particular concern are the ethnic support networks which have formed in recent decades on a worldwide basis after years of regional wars and impoverishment.35 These diasporas channel funding back to traditional homelands, which helps to support them, but unfortunately, those diasporas also can provide the means to pursue extremism and separatism as well,36 and peoples which otherwise would have little equal access to resources in underdeveloped areas are thereby enabled to disturb regional peace and security. Nonetheless, once peoples are forced to protect themselves and compete for scant resources, inter-ethnic violence can lie but a step away, which poses a real challenge to the existing global order. Inequality should of course be tabled constantly for discussion and action both in the UN Security Council, and in the General Assembly, but such matters are not so easily resolved, as variations in approach have shown over many years. For example, as noted by Duffield, the UN until the mid1990s tended to seek negotiated access prior to intervening in inter-ethnic strife in such places as Sudan, Ethiopia, Angola, Mozambique and Bosnia. In contrast, the international community today appears rather less willing to take sides, and it tends to intervene – if at all – much later; even then, intervention is usually intended to support previously-negotiated peace accords, such as in Haiti, Burundi, Ivory Coast, Sierra Leone and East Timor. At an extreme, the UN may do so, “to the extent of









Ibid. at section entitled “Connecting Internal and External Development”. An obligation to develop self-government is found in UN Charter, Chapter XI, Article  (NonSelf-Governing Territories), and Chapter XII, Article  (International Trusteeship System), while in Article , independence may also be developed. See, e.g. Thomas Viles, “Hawala, Hysteria and Hegemony,” Journal of Money Laundering Control () (): ; Jeff rey Simser, “Money Laundering and Asset Cloaking Techniques,” Journal of Money Laundering Control () (): ; Rowan BosworthDavies, “The Influence of Christian Model Ideology in the Development of Anti-Money Laundering Compliance in the West and Its Impact, Post-/, Upon the South Asian Market,” Journal of Money Laundering Control () (): ; Omer Yousif Elagab, “Control of Terrorist Funds and the Banking System,” Journal of International Banking Law and Regulation () (): . See, e.g. Patricia Justino, “The Impact of Armed Civil Conflict on Household Welfare and Policy Responses,” Background Paper, World Economic and Social Survey . Accessed  September . www.un.org/esa/policy/wess/wessfi les/wsbackgroundpapers/justino_.pdf. See, e.g. Comment and Analysis, Jason Burke, “Jemaah Islamiyah shows Militancy without Al-Qaida Leadership,” The Saturday Guardian,  June .


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

militarily-confronting ‘spoilers’”,37 but what seems increasingly apparent is a greater international willingness to adopt a path of least resistance, and seek instead to work towards an accommodation with the militarily-successful party. In turn, the post-9/11 ‘anti-terrorist’ era has been little better – if at all – at reducing or containing threats to regional or international peace and security. Many former notions, such as that of ‘inviolable’ state territory, are increasingly under pressure due to discriminatory distributions of political and economic power at the local level, which then can impact adversely on national and regional harmony, causing wider uncertainty. For example, once a governing regime proves unwilling to manage domestic order consensually, a ‘people’ may find themselves forced to use violence in order to attract wider awareness of their communal plight, to create international leverage, and to secure external support. If the intransigent regime threatens to do nothing to prevent the transfer of its domestic tensions to the next, regional level, the risk increases that social violence will spread beyond territorial confines. In particular, once neighbouring or other states are called upon to accept fleeing refugees, among other international obligations triggered by domestic strife, international obligations not to interfere are more likely to diminish in importance. Accordingly, governments need to consider many more tools than mere forceful coercion when called upon to manage domestic system change, as is now discussed. b

Perspectives and Choices

Requiring a ‘people’ to preserve and protect itself exposes the deep system hypocrisy of an international legal order premised on inter-state non-uses of armed force, and on non-interference in each other’s domestic affairs as the price of peace, whilst paying diplomatic lip-service to the principles of equal rights and self-determination of peoples, which brings matters around to the strategic level. For much of the post1945 era, East and West tended to opt for arms-length ‘partnership’, and thereby to avoid accusations of interference in each other’s zones of influence, albeit often at the expense of other international developments.38 In contrast, the more fluid geo-political situation of the post-Cold War era has tended to operate in a less straightforward manner, as ever more organisations seem willing to intervene in regional troublespots. For example, the US has steadfastly supported an independent Kosovo,39 





Duffield, note  above, at section entitled “The Advent of Post-Interventionary Society”. See also Bulletin, UNDPA, “A ‘critical investment’ in preventing and resolving conflicts,” (Winter -): - (“a better investment than dealing with the costly aftermath of war”). Accessed  September . www.un.org/depts/dpa/newsletters/ DPABulletinWinter-.pdf. See, e.g. Edward Lucas, Lecture, “Tipping the balance? Russia and its Relations with the West,” (London: Royal United Services Institute, October , ); Rachel Stephenson, et al., “Georgia Conflict could set back Russia’s US relations ‘for years’,” The Guardian,  August . See, e.g. Robin Lustig, “State rights vs. human rights?”  April . Accessed  September . www.bbc.co.uk.

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which is a stance not universally accepted throughout the West,40 while the Russian Federation has long stood firm alongside its ally Serbia, putting in doubt any eventual ‘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 Assembly’s 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 first remarking that questions on law can be answered only after the existence of that law is first confirmed, Trainin noted that “attention should [then] be directed to a clarification of what that law represents, what constitutes its economic base, and the interests and wishes of what class or group within that class are reflected in that law”.43 In terms of the question referred to the ICJ – the accordance with international law of Kosovo’s UDI – this structured approach would require first a consideration of what ‘international’ law there is on declarations of independence in general, after which the specific context of Kosovo’s interim international administration would necessitate inquiry. Assuming that it had been possible to locate any international law applicable to the facts and context of Kosovo’s UDI, the Court would then have needed to proceed to a clarification of what that law represented, what constituted its economic base, and what class or group interests were reflected in it. Remarkably, this is, generally speaking, precisely what the ICJ proceeded to do when it rendered its Advisory Opinion on 22 July 2010. The Court first decided unanimously that it did in fact have jurisdiction over a legal question.44 In terms of the Court’s discretion as to whether it should provide an opinion, however, the panel was divided, deciding by nine votes to five 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 membership 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 Century,” 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 (Serbia and Montenegro v. United Kingdom), Preliminary Objections () ICJ ( December): (no jurisdiction to entertain the application fi 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”

merits of the central legal issues, the Court then proceeded to adopt a bifurcated and highly-systematic approach: first, the compatibility of the UDI with general international 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 confined to the sphere of relations between States”,48 the majority 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 international 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 international 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 stabilising 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 specific prohibition in Resolution 1244 against a UDI, and it noted that the Secretary General’s Special Representative had remained silent after notification of what the Albanian authorities had done – a significant point, as the Special Representative was under an international duty to prevent ultra vires acts “of the Provisional Institutions of Self-Government designed to take effect within the legal order for the supervision of which he was responsible”.50 This conclusion then allowed the Court to find that the UDI had not been issued by the Provisional Institutions of Self-Government, that the UDI did not take effect 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), dissented. 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. .

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ers and responsibilities established to govern the conduct of the Provisional Institutions 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 flavour of the opposition. In his dissenting 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 confines of the UN institutional framework. Whilst considering Kosovo’s UDI to be “unprecedented”,54 he argued that the political process in Kosovo had yet to run its course and receive endorsement by the Security Council. He found there was sufficient international law to prohibit the action by the Kosovo Albanian leadership, in the form of Resolution 1244, as otherwise the Security Council would have created a “giant loophole”.55 He concluded that the majority’s interpretation of general international law was “misleading” and “inflammatory”,56 particularly as, “declarations of independence may become relevant in terms of general 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, finding no prohibition in international law of Kosovo’s 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 territorially-defined 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 Trainin’s 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 confirmed in the UN Charter,59 its economic basis, and the special interests reflected 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 comment. 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”

minate inasmuch as it is possible to argue, as it was argued early in the UN era, that the principle merely re-affirms 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 reflects far broader interests than those of states, and potentially verifies 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. Trainin’s 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 motivation, the alteration of their state’s boundaries through complete territorial secession, due to the many known difficulties 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 certain 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 Constitution 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 Kosovo’s shadow government arose and tasked its Liberation Army to defend the province’s majority inhabitants in a violent armed struggle with Serbia neither group could have wanted, particularly once war 







Edward A. Laing, “The Norm of Self-Determination, -,” California Western International Law Journal  (): , n. , attributes this position to Kelsen (), and Bentwick and Martin (). Contrast GA Res.  (VII), UN Doc. A/RES/ ( December ), which affi rms that “all peoples” are entitled to self-determination, as does GA Res.  (VI), UN Doc. A/RES/ ( February ). See Patrick Thornberry, “Self-Determination, Minorities, Human Rights: A Review of International Instruments,” International and Comparative Law Quarterly () (): , text accompanying notes -. Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res.  (XV), UN Doc. A/RES/ ( December ). Adopted by  states to , with  abstentions. See also GA Res.  (XV), UN Doc. A/RES/ ( December ), and  (XX), UN Doc. A/RES/ ( December ); Western Sahara (Advisory Opinion), () ICJ , , and  ( October); The United Nations Today, note  above, . As one example, see Sir Francis Vallat (Special Rapporteur), “First Report on Succession of States in Respect of Treaties,” UN Doc. A/CN./ (). See also Yearbook of the International Law Commission () II():  (self-determination, and the ‘clean slate principle’). Accessed  September . www.un.org/law/ilc/index.htm. See, e.g. Lea Brilmayer, “Secession and Self-Determination: A Territorial Interpretation,” Yale Journal of International Law  (): .

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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 Assembly’s central point of enquiry was the compatibility of the UDI with international 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 influence wielded by those General Assembly states more inclined to support Kosovo was sufficient to signal to those states opposed to the UDI that, if not entirely out-leveraged in political terms, they were sufficiently counter-balanced, to deter the latter from forceful intervention, pending the Court’s 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 Assembly’s powers under Charter Articles 14 and 96(1) viable as a means to circumvent Article 12,66 and thereby produce a resolution 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 Court’s refusal to even discuss that issue serves as an indirect reminder that, in certain circumstances, the more timeless notion of a right to be free of oppression cannot be confined to artificial legal parameters, as is now discussed. c

Self-Determination as Illustrative of Evolving International Law

System change can be sought and accomplished domestically through peaceful as well as through violent means, and many political and economic ‘revolutionary’ accommodations have been made effective since the end of the Cold War era in particular without undue loss of life. Revolutionary episodes to achieve self-determination certainly occurred prior to the Charter era,67 but it is only since 1945 that one may speak safely of the acceptance in customary international law of a right to    

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/ ( November ). 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 Lenin’s 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”

self-determination,68 and more controversially perhaps, of a ‘right’ in the sense of jus cogens.69 To the extent that any law retains its relevance under modern conditions only so long as it remains flexible and reflects a wide consensus,70 the place of self-determination in international law is now discussed in the contexts, fi rst, of the identification of ‘peoples’, and secondly, of the international management of ‘entitlements’ to self-determination in practice. i The Issue of Definition To speak of a ‘people’s’ desire to achieve rights of self-determination is first to beg the question as to what precisely is meant by the term ‘people’. Available choices include an ‘ethnic’ or ‘minority’ approach to definition, as well as a wider ‘civic’ or political dimension in which there is demonstrated a common desire to live together, for example.71 The existence of historic lands may serve to unite a ‘people’, as with the Palestinians or Native American tribes,72 or in spite of common ties to land, a ‘people’ may seek to differentiate themselves further and partition territory, as in Ireland,73 or India. There may be ethnic commonalities, as in certain Chinese communities dispersed around the world,74 while a ‘people’ may also share a trans-boundary history, as do the Kurds, or Basque people.75 There may be historic entanglements and/ or ongoing disputes over sovereignty, as in Kashmir or the Falkland Islands,76 while





 



   

 (): ; Anthony Whelan, “Wilsonian Self-Determination and the Versailles Settlement,” International and Comparative Law Quarterly  (): . Article (), UN Charter. Cf. Laing, note  above, , quoting Brownlie in : “selfdetermination [is] a legal principle, and UN organs do not permit Article () to impede discretion and decision when the principle is in issue” (citation omitted). See, e.g. Article ()(b), ILC Draft Articles on State Responsibility, Yearbook of the International Law Commission () Volume II:, , characterising as an international crime, “a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples”. See generally the Vienna Convention of the Law of Treaties . Commentary on the Additional Protocols of  June , eds. Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (Geneva: Martinus Nijhoff Publishers, ), – (hereinafter ‘The Commentary’). See, e.g. David McDowall, “The Palestinians,” Minority Rights Group Report  (); James Wilson, “The Original Americans: US Indians,” Minority Rights Group Report  (). See, e.g. Harold Jackson and Anne McHardy, “The Two Irelands: the Double Minority,” Minority Rights Group Report  (). See, e.g. Henri Tajfel, “The Social Psychology of Minorities,” Minority Rights Group Report  (). See, e.g. “The Kurds,” Minority Rights Group Reports  (); “The Basques and Catalans,” Minority Rights Group Reports  (). See, e.g. Maya Chadda, “Minority Rights and Conflict Prevention: Case Studies of Conflict in Kashmir, etc.,” Minority Rights Group International ( August ). As for the contrast between the Argentine and British view on the Falklands, cf. Rudolf Dolzer, Territorial Status of the Falkland Islands (Malvinas) (Dobbs Ferry: Oceana, ), and

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a right to self-determination may equally be expressed by an entirely auto-defined people, who simply share a desire to live under one or other political system.77 Such examples provide but a glimpse of the elasticity of self-determination in terms of the underlying ideas which inspire human groups to strive for greater autonomy in contexts far broader than colonialism, but when assessing the respective merits of particular claims, qualifying pre-conditions for identifying peoples ‘entitled’ to exercise their self-determination may prove useful. More fundamentally, the relative balance of state convenience and self-interest must first be addressed, in order to gauge the likely effects of particular exercises on wider realities, particularly as alternative self-determination platforms exist such as to enable a collective politics to be pursued by similarly-minded individuals, e.g. to secure equal human rights in many environments. For example, the most destabilising question of all for the international community is that of territorial secession, as is illustrated by Kosovo’s recent UDI, and inquiry is often made as to the circumstances which may justify, if not positively permit, a people to take such a drastic step, particularly as a secessionist agenda is rarely the original motivation of most peoples. Instead, an expressed desire for complete independence should instead raise further enquiry as to what prompted such discontent with existing territorial arrangements. Generally, state consent is required for territorial secession to occur ‘lawfully’ outside the colonial context. If consent is withheld, a people may then seek outside support for secession at the wider international level,78 such that a ‘new state’ may more likely than not emerge safely into widespread diplomatic recognition. In turn, the appropriate international reaction to a self-proclaimed independence which has resulted from liberationist violence or armed conflict, as in Kosovo, is less straightforward. An incremental approach is then attributable largely to the structure of international law. It is, of course, trite jurisprudence to note that any legal entitlement must, in the first instance, rest upon recognitions of both status and capability, such that associated rights and claims can be enforced. For example, state administrative units automatically possess international legal personality, as international rules are negotiated and agreed by states for states, while individuals do not. Accordingly, states hold effective authority and control over individuals, and prior state consent is required for nationals to have conferred on them any degree of international personality independent of municipal law, such as occurs in certain state or regional human rights arrangements.79

 



Graham Pascoe and Peter Pepper, “Getting It Right: the Real History of the Falklands/ Malvinas: A Reply to the Argentine Seminar of  December ”. Accessed  September . 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 .


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Accordingly, it is not in the mutual interest of states to recognise an automatic customary law entitlement to secede territorially, and there is no evidence of state practice or opinio juris in support of such a proposition – quite the opposite, while in the concrete case of Kosovo, opinion and practice appear much more divided. It is for this reason that a ‘people’ claiming their self-determination need, in the first instance, the consent of their own state in order to benefit from available domestic procedures. Should such domestic arrangements not exist or fail, as is normally the case, the obstacles to greater autonomy can become increasingly difficult to overcome,80 which brings matters around to the system of law within each state. Inasmuch as international rules are negotiated consensually by states for states, the development of friendly relations between states, according to the UN Charter is premised on respect for the principles of equal rights and self-determination of peoples. However, friendly relations are trumped in importance by the predominant Charter concern to maintain international peace and security, which latter is made the corollary of mutual state non-interference in the domestic affairs of each other. This ranking in relative importance of Charter principles illustrates why it is in the mutual self-interest of states to act together to prevent any autonomous or secessionist tendencies in micro-units of disaffected ‘peoples’, which alone illuminates post-1945 attempts to discriminate against ‘external’ rights of self-determination (including territorial secession), in favour of government-controlled ‘internal’ rights (e.g., strengthening some human rights). Internal rights are thus premised on an essential hierarchy in the international order between state and individual rights, and the achievement of self-determination is thus structured in formal terms so as to leave to individual states a wide margin of discretion when the time arrives to accord respect to such international principles in their domestic arrangements. Accordingly, the right of self-determination allows states to agree mutually that ‘all peoples’ are so entitled,81 whilst the concrete application of self-determination can be left to domestic state arrangements, and, of course, ‘events’,82 such as the outbreak of a non-international armed conflict. Whatever procedure – consent, outside support, and/or the use of force – proves persuasive, UNGA Resolution 2625 (XXV) of 1970 lists the following preferred outcomes for exercises by peoples of their right to self-determination, inasmuch as those outcomes are considered to be in accordance with the purposes and principles of the UN Charter: 





See, e.g. Marc Weller, “Settling Self-Determination Conflicts: Recent Developments,” European Journal of International Law  (): ; Alexandra V. Orlova, “Russia’s Anti-Money Laundering Regime: Law Enforcement Tool or Instrument of Domestic Control,” Journal of Money Laundering Control (): . E.g. in GA Res.  (XXV), UN Doc. A/RES/ ( October ). See also Legal Consequences for States of the Continued presence of South Africa in Namibia (South West Africa) Notwithstanding SC Resolution  () (Advisory Opinion), () ICJ  ( June). See Colin Warbrick, “Kosovo: the Declaration of Independence,” International and Comparative Law Quarterly () (): , text accompanying notes -.

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the establishment of a sovereign and independent state, the free association or integration with an independent state, or the emergence into any other political status freely determined by a people.

Much progress remains to be achieved even in the narrow confines of colonialism,83 but these three possibilities, of course, do not necessarily eliminate others, and a realistic response to wilder rights claims no doubt will always need to be formulated. However, what this short list certainly does acknowledge is that Charter-compliant outcomes do not indicate the means to achieve them, which may equally help to deny to certain peoples a wider scope of action when seeking to govern themselves alternatively.84 Obviously, a required procedure for states to negotiate solutions consensually with their ‘peoples’ would be ideal, but the international community has yet to devise such a procedure, and is unlikely to do so in the near future, as is reflected in the refusal of the ICJ to even discuss such matters in the case of Kosovo. To then query whether and why a state has tethered its internal institutional arrangements to hierarchically-imposed state identifiers over which ‘peoples’ have no control could still prove useful, if only in order to produce evidence that the Charter condition of ‘respect’ for self-determination is lacking, as is now discussed. ii Law to Keep Self-Determination “Safe” for Governments The first modern support for self-determination was communicated in the 1941 Atlantic Charter of 14 August 1941, which constituted the Allies’ vision of a fairer postwar world. The inclusion of pro-self-determination sentiments in the Atlantic Charter naturally provided fruitful rhetoric to rally colonial troops to the Allied cause during World War 2,85 but a concern to end colonialism also reflected a pragmatic purpose – an anti-colonial agenda could be utilised to forge future ‘free trade’ relationships with newly-liberated ‘peoples’, making the fruits of their territories more widely available.86 On the other hand, the principle of uti possidetis serves state interests well, in that it operates to confine exercises in self-determination to former colonial boundaries or similar, as the only indisputable situations in which self-determination can occur ‘lawfully’.87 Fortunately, this principle has not succeeded in  

  

GA Res.  (XV), UN Doc. A/RES/ ( December ) still applies to  nonself-governing territories, including the Falkland Islands. See note  above, -. E.g. leading Abkhaz politicians have stated a preference for greater integration with the Russian Federation rather than outright secession from Georgia. Accessed  September . www.minorityrights/abkhazia-unrecognised-state. See Laing, note  above, - and -. Ibid. . E.g. a ‘right’ to territorial secession beyond the colonial context depends on pre-existing, territorially-defined administrative units of a federal nature which, “acquire the character of borders protected by international law”. Arbitration Commission of the Peace Conference on Yugoslavia, Opinion Nos. - on Questions arising from the Dissolution of Yugoslavia,  January and  July , Opinion Nos.  and , reprinted in International Legal Materials  (): - and -, respectively. See also


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

confining autonomy struggles completely, as to do so would, “mistake the map for the territory”.88 Instead, General Assembly resolutions from the 1950s to the 1970s slowly gained in momentum, to support the right of self-determination,89 then the right to use all available means to achieve it,90 and ultimately, the entitlement of “all peoples”.91 The many contradictions between states’ and peoples’ rights have instead created sufficient space for ‘peoples’ living far beyond so-called ‘salt-water’ imperialism to feel similarly enabled when seeking forms of redress for their many grievances. Even so, “respect for the principles of equal rights and self-determination of peoples” is somewhat weakened by its positioning in the Charter in conjunction with equal human rights, as the latter are individual, and thus made dependent on such domestic state arrangements as exist within individual states. The codified substance of human rights thus varies from state to state, while the formulation of even minimal international rights entitlements has had to await system maturities in the Charter era. For example, in relation to the various situations initially anticipated as ‘lawful’ exercises in self-determination, whether or not made relevant to sovereign states alone and/or their former colonies, overly-cautious interpretations of the operable frameworks helped, at least until recently, to avoid the most radical form of selfdetermination: territorial disintegration.92 Accordingly, between the approval in 1960 of General Assembly Resolution 1514 (XV) and 1980, some 60 former colonial territories attained their independence and joined the UN as members, while others were integrated or associated voluntarily with pre-existing states.93 Related struggles by peoples, e.g. against racist regimes or alien occupation, also have attracted a measure of international attention and support, which constitutes a further acknowledgement that the drive to end colonialism represents but one ‘acceptable’ format.94 However, ultimate proof that a ‘people’s’ struggle for self-determination should no longer be considered a mere domestic is-

 

    

Burkina Faso v. Republic of Mali () ICJ  ( December), in which the Court noted the principle was not affected by rights to self-determination. Simon Caulkin, “Seize the chance,” The Observer Business and Media,  April , . See, e.g. GA Res.  B (XXIV), Article , UN Doc. A/RES/ ( December ); GA Res.  (XXVI), Article , UN Doc. A/RES/ ( December ), and GA Res.  (XXVII), Article , UN Doc. A/RES/ ( December ). See, e.g. GA Res.  (XXVIII), Article , UN Doc. A/RES/ ( November ), and GA Res.  (XXIX), Article , UN Doc. A/RES/ ( November ). GA Res. , UN Doc. A/RES/ ( October ). Which term could also apply to states previously in the Soviet orbit, e.g. Yugoslavia, during and after the time of Tito. The General Assembly has declared a Second International Decade for the Eradication of Colonialism, for  to . See note  above, . Others formats include aggression, hegemony, alien subjugation, foreign domination and exploitation. See, e.g. GA Res.  (XV), Additional Geneva Protocol  of  to the four Geneva Conventions of , and the Islamic Conference Convention on Combating International Terrorism .

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sue was provided in the context of non-intervention, when in 1977 international humanitarian laws of armed conflict 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 afford unwarranted recognition to ‘rebels’ and ‘terrorists’.96 The adaptation of humanitarian laws to the realities of modern armed conflicts 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 ‘peoples’ increasingly to be the visible face of armed conflicts 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, confidence, 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-determination ‘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 ‘conduct 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

 

 

 Additional Protocol , Article (). See, e.g. Hans-Peter Gasser, “Agora: the U.S. Decision Not to Ratify Protocol ,” American Journal of International Law  (): ; Judith Gardam, “Protocol  to the Geneva Conventions: A Victim of Short-Sighted Political Considerations?” Melbourne University Law Review  (): . Cf. Letters dated  March and  March , note  above (condemnation of Serbian police not an endorsement of “terrorist actions by the Kosovo Liberation Army”). See, e.g. David Babayan, “Self-determination Triumphant in the Arctic,” The Armenian Reporter,  July . Accessed  September . www.reporter.am. E.g. the UN Human Rights Committee, established under Part IV of the ICCPR of , has no powers to make binding decisions on the merits of cases. See Shaw, note  above, -.


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

of a constructive armed attack.99 For example, Friedrich, among others, argues that Resolution 2625 provides strong support for the transformation of internal rights entitlements into external rights in such circumstances, and with specific 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 entirely ‘safe’ for governments, no putative ‘law’ can ever provide the final 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-determination 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 finance (ostensibly to block the flow of funding to ‘terrorists’) are considered, 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 fluid, 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. 3

“Peaceful” and “Other” Exercises in Self-Determination

Underpinning all discussion of ‘peaceful’ exercises of self-determination there is first an essential ‘war’ and ‘peace’ dichotomy in international law which needs enquiry. To progress to the legal distinction between the two conditions is a logical next step, inasmuch as each condition entails its own set of lawful rights and duties, yet the ‘peaceful’, if not always ‘friendly’, transitions to self-determination in the post-1945 era have not always made the terms ‘peace’ and ‘war’ self-explanatory. Specifically, rules governing ‘war’ flow from international law and custom, the content of which is reinforced by the recently-formed International Criminal Court, whilst ‘peacetime’ rules may (or may not) be conditioned by respect afforded to international rules in domestic state law. This means that the source of law which is applicable to violent exercises of self-determination should shift from the purely domestic, to the international. In order to address this most fundamental issue, the distinction made in law between a state of ‘war’ and a state of ‘peace’ is now briefly outlined. 

Friedrich, note  above,  (secession as a form of “self-defence” or “ultimate defence”). See also Yuval Shany, “Symposium: Self-Defence: The Analogy’s Limit: Defending the Rights of Peoples,” Journal of International Criminal Justice () ():  (the distinction is one of context).  Friedrich, note  above,  (citations omitted).  E.g. the attempted coup d’etat in Equatorial Guinea in , to obtain control over preferential oil rights and other resources.

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a

‘Peace’ as the Absence of ‘War’?

Preliminarily, the word ‘peace’ denotes the absence of violence, conflict or other confrontational discord. As noted by the organisation Greenpeace in the context of the First Gulf War in the early 1990s: 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 aggressive 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 specifies in the pertinent part that the four 1949 Geneva Conventions “shall apply to all cases of declared war or of any other armed conflict 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 reflects both the fact of war, and the high degree of flexibility retained by states in the UN era when the time arrives to utilise military force, as when defending themselves against ‘an armed attack’ in accordance with the UN Charter’s article 51. Article 51 does not confine the right of self-defence to responses against state armed attacks alone,105 even though prior to 9/11, there was certainly a doctrinal tendency to do so.106 Specifically, 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/ ( December ), Article .  Report of the Secretary General’s 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-Defence,” 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”

conflicts,107 which has made their regulation, “politically and legally contentious”,108 despite the fact that an ‘armed conflict’ is a core concept in international law. Moreover, the characterisation of an armed conflict 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 conflicts, 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 flexibility 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, ‘aggression’, 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 onesidedness in legal entitlement led many states to combine their military and law enforcement activities for use against terrorists, insurgents, violent extremists, etc.,114 but the melding of specialised (wartime) terminology within that of general peacetime has also provided a foundation for disregarding the legal implications of rules of international humanitarian law, as is now briefly outlined.

 International Law Association, “Initial Report on the Meaning of Armed Conflict in International Law,” (): . Accessed  September . www.ila-hq.org/en/committees/index.cfm/cid/.  “The Chatham House Principles,” note  above, -, and Principle F, at -. See also Costas Antonopoulos, “The Relationship between International Humanitarian Law and Human Rights,” Revue Helenique de Droit International () (forthcoming, ):  (Israeli intifada) and  (Operation ‘Cast Lead’). See also Editorial, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,” International Review of the Red Cross  (June ): .  Antonopoulos, note  above, .  See, e.g. the SC draft resolution on unrest in Burma, UN Doc. S//, vetoed by China, Russia, and South Africa (domestic question posing no threat to regional peace and security), UN Doc. S/PV. ( January ). Cf. Carlo Focarelli, “The Responsibility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a Working Doctrine,” Journal of Conflict & Security Law () (): , -.  See “Status of the  Geneva Protocols,” UN Doc. A/RES// ( December ).  A point reinforced by the new definition of aggression in the  Rome Statute for an International Criminal Court. See Resolution RC/Res. , “The Crime of Aggression,” Annex : “Amendments to the Rome Statute, Articles bis and ter,” adopted  June  by consensus. Accessed  September . www.icc-cpi.int/iccdocs/asp_docs/ Resolutions/RC-Res.-ENG.pdf.  See, e.g. Detter De Lupis, note  above, -.  See, e.g. discussion at Shaw, note  above, -.

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“War” and Armed Conflicts

The conditions for the application of international humanitarian laws of armed conflict have long been both clear and objective, and the universality of humanitarian obligations is reflected most recently in the jurisdiction of the International Criminal Court.115 Rules for combatants are divided between those for use in international armed conflicts, and those for non-international armed conflicts.116 For example, once insurgents control territory, and/or employ violence of a certain intensity and duration, the situation should be treated as an armed conflict, which simultaneously requires at the very least a minimal recourse to Geneva laws,117 and humanitarian treatment of all persons who are hors de combat. The phrase “humane treatment in all circumstances” is found throughout the various Geneva instruments,118 but the phrase nonetheless opens up particular difficulties in internal conflicts regarding, inter alia, combatant status, as it is exceedingly rare for a threatened state to recognise humanitarian rules when dealings with ‘terrorists’. Instead, organised (and/ or ‘terrorist’) liberation forces are normally dealt with through repressive domestic criminal law measures.119 However, once a state comes under outside pressure to comply with humanitarian rules, it should do so in a manner which does not undermine or compromise those rules, particularly as they relate to innocent civilians. The challenge is that, as liberationist groups have not themselves participated in negotiating or agreeing humanitarian and/or treaty rules for waging armed conflict,120 there is doubt as to their willingness or ability to respect humanitarian rules for which they may have little sympathy, aptitude, or positive reinforcement.121 Moreover, the essential phrase

 Articles -, Statute of Rome .  The four  Geneva Conventions, and Additional Protocol  of , apply in full to international armed conflicts. Common Article  to the  Conventions, and Additional Protocol  of , apply to non-international armed conflicts.  See also Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, ), which work identifies the customary law rules that apply in both international and non-international armed conflicts.  See also the ‘Martens Clause’ found in the Preamble to Hague Convention IV of , Additional Protocol  of , Article (), and Preamble to Protocol  of .  Contrast, e.g. Protocol  of , Article (): “the application of the Conventions and of this Protocol… shall not affect the legal status of the parties to the confl ict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question”.  But see Antonopoulos, note  above, –.  The Powers in conflict are strictly bound only to opposing Powers which accept and apply the relevant conventions. Common Article  to the  Geneva Conventions, and Additional Protocol , Article ().


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

‘armed conflict’ is left undefined in Geneva law,122 but the ICRC has made it clear that “the law of war applies from the first acts of hostilities or un-resisted occupation”.123 Such automatic applicability is exceedingly controversial, as to require a state threatened with ‘internal enemies’ to implement any level of international rules at the “first acts of hostilities”, etc., is to expect that state to acknowledge for international consumption 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 minimum. Common Article 3 provides that in a non-international armed conflict, 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 article’s central humanitarian purpose can be easily flouted. With such deficiencies 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 conflicts are extended to “include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, 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 follows: The expression ‘colonial domination’ certainly covers the most frequently occurring case in recent years … The expression ‘alien occupation’ … covers cases of partial or total occupation 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 first two situations imply the existence of distinct peoples. The third implies, if not the existence of two completely 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 conflicts 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 Conflict’ defined in international law?” ( March ). Accessed  September . www.icrc.org/web/eng/siteeng.nsf/htmlall/armed-confl ict-article-/fi le/Opinion-paper-armed-conflict.pdf.  Frederic de Mulinen, Handbook on the Law of War for Armed Forces (Geneva: International Committee of the Red Cross, ), .  The Commentary, note  above, .

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nation categories is rather broader than colonial domination, alien occupation and racist regimes. Resolution 2625 specifies in pertinent part that: By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter, all peoples have the right freely to determine … their political status and to pursue their economic, social and cultural development, their political status and to pursue their economic, social and cultural development (emphasis added).125

The Resolution devotes its special condemnation to colonialism, and states are exhorted “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 applicability of humanitarian laws to liberation conflicts is rather more specific, and the ICRC’s 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 notion of ‘Party to the conflict’, 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 fighting for conflicts of ‘self-determination’ or ‘national liberation’.126

What no doubt facilitated the promotion in status of liberation conflicts to fullscale international armed conflicts is the additional statement in Resolution 2625 that “the territory of a colony or other non-self-governing territory has, under the UN Charter, a status separate and distinct from the territory of the state administering it”. This acknowledgement permits the view that a non-self-governing territory by definition has a separate status which is akin, if not entirely equivalent, to a subject of international law, such that an armed conflict between that territory and its administering state may require the application of international standards of behaviour. The ICRC, as proposer of Article 1, appears to promote this viewpoint, but the organisation also makes clear that a non-state party to a conflict needs a degree of international status, e.g. that afforded due to its battlefield behaviour. As a precaution against overly-broad interpretations, the ICRC adds: “the mere existence of a government or resistance movement is not sufficient evidence of the interna-

 UN Doc. A/RES/ ( October ).  Emphasis added. The Commentary, note  above, . See also Jacques Meurant, “The th anniversary of the International Review of the Red Cross – A faithful record,” International Review of the Red Cross  ():  (“ironic that … no movement has ever referred to Article (), since the Protocols were adopted”).


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

tional character of the conflict, 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-international armed conflicts, and Article 1(1) makes the application of the two Protocols mutually exclusive. The price of tighter state self-regulation, beyond that in Common 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 conflict 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 considered a de facto authority within a state, are not engaged in conflict against government 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 conflict. Conflict 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 conflicts”,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 fit. 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 characterisation 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, “International 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 conflict, 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 Definition of NonInternational Armed Conflict in the Rome Statute: An Analysis of the Threshold of Application Contained in Article ()(f),” Journal of Conflict and Security Law () (): .

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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 largescale 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 definition of so-called ‘political’ prisoners. They may be referred to in very different 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 conflicts more recently as follows: Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.133

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 fighting 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 ratification. The Socialist Federal Republic of Yugoslavia ratified the  Conventions in , and the two  Additional Geneva Protocols 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 Conflict,” 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  confirmation that, “the territorial and temporal 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”

that an ‘armed conflict’ 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 sufficient evidence to determine, in Case No. IT-02-54-T, that “the KLA [had been] an organised military force, with an official 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 sufficient control of certain territory in Kosovo to conduct sustained 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 conflict 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 increasingly 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 conflicts, e.g., in the former territory of Yugoslavia, Rwanda, and elsewhere, widespread efforts have been made to strengthen the notion of ‘international crimes’, such that individual criminal responsibility 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 during 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 conflict. In turn, the mere fact that gross and/or mass atrocities occur outside of an ‘armed conflict’ has helped to reinforce an agenda designed to sidestep the many difficulties 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 conflict” existed before  March ). Ibid. para. . Ibid. para. . Ibid. para. .

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requires the prosecution of perpetrators of international crimes regardless of individual status. Whether or not an ‘armed conflict’ is occurring remains a highly contentious issue, particularly once a well-rehearsed spiral of repression-reaction-repression generates violent and disturbing episodes, as occurred in Kosovo between 1989 and 1999. As noted above, the non-recognition by a state of an ‘armed conflict’ not only undermines the force of international law, but further, helps to delay the point at which that state may be called upon to accept international responsibility for its domestic actions. A ready resort to military force in more unusual situations has in turn become an increasingly pressing challenge to international society since 9/11, such that, by May 2005, the means and methods of state violence utilised in the ‘war on terror’ prompted the Executive Committee of the International Law Association to request the Association’s Use of Force Committee to conduct a study into the exact meaning of the term ‘armed conflict’ in international law.140 In so doing, the Committee has helped to expose the gaps in coverage which exist in general principles of international law, international custom, treaties, judicial decisions and the commentaries of publicists. After three years of research, the Use of Force Committee presented its preliminary findings in August 2008.141 These findings reflected, as a minimum, that there is in existence an armed conflict for purposes of international law when evidence of the following two criteria is present: a) The existence of organised armed groups, and b) Fighting of some intensity. 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 afforded into the on-going debates which surround the denomination of the different forms of violence utilised in different contexts. Instead, the two preliminary criteria reflect a simple, pragmatic approach to a factual situation. The Use of Force Committee submitted its final report to the ILA Annual Conference, held between 15 - 20 August 2010 in The Hague.142 The final report expands greatly on the detail of recent armed and domestic conflicts, in order better to distinguish between their defining characteristics. The final 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 conflict”.143 In turn, evidence in sup See Mary Ellen O’Connell, “Defining Armed Conflict,” Journal of Conflict & Security Law  (): .  International Law Association, “Initial Report,” note  above.  International Law Association Use of Force Committee, “Final Report (Draft) on the Meaning of Armed Conflict 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”

port of this common understanding was provided negatively, by means of the following consequences to third states of an armed conflict occurring elsewhere: In addition [to laws of armed conflict], states that provide asylum to persons fleeing the violence of armed conflict will have the duty to do so; treaty obligations may be implicated; the law of neutrality may be triggered; arms control agreements are affected, and UN forces engaged in armed confl ict will have rights and duties not applicable in operations outside of armed conflict. These are just some of the areas of international law that are affected by the outbreak of armed conflict.144

The Committee could find no widely accepted definition of an armed conflict in any treaty, so it concentrated instead on the fact that “[a]ll armed conflict has certain minimal, defining characteristics that distinguish it from situations of non-armed conflict or peace”.145 Most crucially, the Committee made clear that, in the event all these characteristics were not present, “states may not, consistently with international law, simply declare that a situation is or is not armed conflict based on policy preferences”.146 The tendency by states to use the political labelling process, in order to disregard their more inconvenient international obligations, is thus expressly acknowledged. With specific reference to the politically-charged ‘war on terror’, the final report of the Use of Force Committee notes that “it cannot be assumed – as in the past – that a state engaged in armed conflict is free to attack its adversary anywhere in the area of war”.147 The report concludes: Perhaps most importantly states may only claim belligerent rights during an armed conflict. To claim such rights outside of an armed conflict risks violating fundamental human rights that prevail in non-armed conflict.148

It is of huge significance that the Use of Force Committee points essentially to the same criteria as those utilised in the ICRC’s efforts to promote humanitarian restraint, and the Committee’s 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 flexibilities 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. .

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much if any reference to international law. In contrast, the final Committee Report disagrees with this recent tendency, particularly when the purpose of extra-territorial enforcement activity is solely to buttress the enforcing state’s own national security. This then reinforces the point made by Professor Brownlie, that UN organs should disregard a strict approach to the UN Charter’s Article 2(7) when international principles are in issue.149 On the other hand, it may seem odd today that the characterisation of so recurring 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 theories of ‘corrective’ or ‘remedial’ self-determination. This point brings matters around to the legal vacuum present in many non-international armed conflicts, 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 battlefield notions of necessity and proportionality.150 Most crucially, the main drawback of humanitarian rules is that once implemented, there is no further potential to derogate from them. This means that a conflict 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 nation”, for all but the strongest rights such as the right to life. For situations moving in and out of ‘armed conflict’ 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 benefits 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 conflicts”.  See Wolff Heintshel von Heinegg, “The Current State of International Prize Law,” in International Economic Law and Armed Conflict, ed. Harry H.G. Post (London: Martinus Nijhoff Publishers, ), , -.  See, e.g. Preamble to Additional Protocol : “international instruments relating to human rights offer a basic protection to the human person”.


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

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 Kosovo’s 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 final rump of its former twentieth century territorial integrity is to conflate 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-determination which do not result from ‘peaceful’, ‘friendly’, or tolerable consensus continue to pose deep questions for the international community. The early confinement 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 Conflict: 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, ), “Programme 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, , first published ).

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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 international law.156

More international actors, positive developmental goals, and the de-legitimisation of much political violence today have nonetheless not prevented the principle of selfdetermination from holding a natural place for national aspiration in which to grow and mature as a right of ‘all peoples’ alongside the principle of non-interference in state domestic affairs. The Charter purpose of maintaining international peace and security remains of great importance of course, yet the visibility of much international ‘common-cause’ today implies that exercises in self-determination are bound in the future to occur increasingly within a less-constrained political environment. Inasmuch as the interests of states are no longer as static as they once were, latent uncertainties are equally unlikely to have predictable consequences for system stability, particularly as it has never been assumed that ‘peace’ is equivalent to harmonious inter- or intra-state relations. Today, at least half of all wars being fought involve claims by non- or post-colonial groups for their rights of self-determination in one or other form, only some of which are fought for territorial separation.157 In contrast, certain existing autonomy arrangements appear to be ‘sufficient’, given the costs and risks of disunity, as in the UK, or in Canada.158 Some transitions on their face are viewed as ‘peaceful’, some are ‘harmonious’, some are tolerable, and some are none of the above, which makes the split in international opinion directed at the Kosovo UDI no different from what has gone before. However, one important, if neglected, aspect of the situation in Kosovo is that the gradual international acceptance of the UDI represents an overall ‘bargain’ of sorts for most concerned: in highly simplistic terms, the Balkan region has a far better chance today, under international administrative supervision and tutelage, of enjoying a peace dividend than it ever did formerly. When all is said and

 Shaw, note  above, .  The Commentary, note  above,  (citations omitted).  Griffiths, note  above, text accompanying n. , in which statistics by Wallensteen and Sollenberg are indicated (citation omitted).  See, e.g. Stephen Tierney, “Symposium: Constitutionalism in Divided Societies. Giving With One Hand: Scottish Devolution Within A Unitary State,” International Journal of Constitutional Law  (): . See also Reference re. Secession of Quebec []  Supreme Court Reports (Canada).


Chapter 7, Elizabeth Chadwick – Post-World War 2 Exercises of Self-Determination: “Peaceful”, “Friendly”, and “Other”

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 final 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 international ‘law’, whether or not Kosovo had any pre-existing entitlement to self-determination, 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 afforded enough time. At the end of the day, the Kosovars themselves hold the ultimate ‘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 Stuart 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 international ‘law’ would mean little if the non-prohibition of Kosovo’s UDI in international law found by the ICJ does not inject a bit more concrete reality into the current 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 Kosovo’s 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 latter’s legal advices – a delay which afforded additional time for further 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’, Kosovo’s transit to a future status has at least – so far – been accomplished ‘peacefully’.

 E.g. a ‘peaceful’ Kosovo, and Bosnia-Herzegovina, could be relevant to membership negotiations between Turkey and the European Union.  John Stuart Mill, “The Contest in America,” in Dissertations and Discussions (Boston: Wm. V. Spencer, ), -, quoted in J. T. Johnson, “Th reats, Values and Defense: Does the Defense of Values by Force Remain a Moral Possibility?” in Just War Theory, ed. Jean Bethke Elshtain (Oxford: Blackwell Publishers, ), , .  See generally, Warbrick, note  above.

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Chapter 8

The Long Intervention in Kosovo: A Self-Determination Imperative?

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 flies 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 imperative – 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 Yugoslavia (‘the FRY’)2 at the time of the 1998-99 Kosovo3 crisis addressed both the nature of  

B.B. Jia, “Independence of Kosovo: A Unique Case of Secession?” Chinese Journal of International Law  (): -. Five states emerged from the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY). On  April  two of the six republics of the SFRY – Serbia and Montenegro – formed the Federal Republic of Yugoslavia which was considered by the EC Peace Conference Arbitration Commission to be a new state. Conference on Yugoslavia Arbitration Commission (hereinafter the Badinter Commission), Opinions on Questions Arising from the Dissolution of Yugoslavia, () Opinion No. . The FRY was recognised by member states of the European Community following the Dayton Agreement of  December . The other four republics became independent states: BosniaHerzegovina, Croatia, Macedonia and Slovenia. On the question of nomenclature and in particular toponymes, the  Federal Constitution of the SFRY referred to ‘Kosovo’. Kosovo, however, is generally known to Serbs as ‘Kosovo-Metohija’. As with so many of the internecine conflicts in the Balkans, place names carry great political significance. Metohija is a Greek word which indicates part of a district which was Orthodox Church property. E. Kofos, “The Two-Headed Albanian Question”, in Kosovo: Avoiding Another Balkan War, ed. T. Veremis and E. Kofos (ELIAMEP: Athens, ), . For Kosovo Albanians, the preferred term is Kosova, an Albanian name which describes it as an ethnically Albanian land. Ibid. . Th roughout the crisis, the name Kosovo was used by most members of the international community

James Summers. (ed.), Kosovo: A Precedent? © Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 249-278.


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the intervention and its length in fairly narrow terms. In respect of the latter issue, the intervention was generally taken to have begun with NATO’s aerial bombardment which commenced upon 24 March 1999 (with the bombardment, if not the intervention, ending on 10 June 1999); while in terms of the nature of the intervention, debate about the legality and/or the justifiability of NATO’s bombing campaign has largely revolved around its construction as a purported instance of ‘humanitarian intervention’, thereby confining the debate concerning both the nature and the legitimacy of western activity within the by now well-established discourse on humanitarian 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 considered the intervention to be unjustifiable on ‘humanitarian’ grounds. These suggested either that humanitarian intervention without Security Council authorisation is illegal 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

 

including the United Nations Security Council (e.g. in Resolution  () which authorised an international civil and military presence in Kosovo) and this name will be used here. Antonio Cassese, “Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?” European Journal of International Law  (): -; Abraham Sofaer, “International Law and Kosovo,” Stanford Journal of International Law  (): ; and The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University Press, ),  (the Independent International Commission on Kosovo is hereinafter referred to as the ‘IIC’). Even the IIC report which supported the intervention said it was, “illegal but legitimate”. Ibid. . a position also taken by a UK House of Commons Foreign Affairs Committee Report – House of Commons Foreign Affairs Committee Fourth Report,  May , para. . For other opinions which consider the bombing to have been unlawful but which are otherwise sympathetic to NATO’s motivations see Bruno Simma, “NATO, the UN and the Use of Force: Legal Aspects,” European Journal of International Law  (): -, Michael J. Glennon, “The New Interventionism: The Search for a Just International Law,”  Foreign Affairs  (). See also, Nico Schrijver, “NATO in Kosovo: Humanitarian Intervention turns into Von Clausewitz War,” International Law Forum  (): -. Jonathan I. Charney, “Anticipatory Humanitarian Intervention in Kosovo,” American Journal of International Law  (): -. Among those sceptical of the idea that NATO and others were motivated by humanitarian concerns include: Noam Chomsky, A New Generation Draws the Line: Kosovo, East Timor and the Standards of the West (New York: Verso, ); Robert M. Hayden, “Humanitarian Hypocrisy,” East European Constitutional Review  (): -; Christine Gray, International Law and the Use of Force (Oxford: Oxford Unversity Press, ), .


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

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 confines of the humanitarian intervention narrative, an approach that will help us come to terms with the international response to Kosovo’s Declaration of Independence on 17 February 2008. On a temporal level, it seems that, given the intensity of the international involvement in FRY’s affairs 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 NATO’s bombing began. Although the bombing campaign clearly represented a different 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 intensified8 – 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 conflict 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 financial sanctions. It is important to recognise that intervention can take different forms and that diplomacy of this kind when exercised by powerful states or international actors can impact upon state the reality of sovereignty. Martin Loughlin discusses sovereignty as having both a legal and political dimension. These he defines, 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 dissolution 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 Yugoslavia’s collapse, in particular the Bosnian war, helped shape the approach taken by international actors from -. It seems that NATO’s bombing campaign in Kosovo requires to be set within this broader context. UNHCR figures cited by IIC Report, note  above, . Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, ), .

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fect a state’s 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 naïveté.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 influencing 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 decision-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 internal 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 Hannum’s argument set out in 1990 that the, “right of autonomy”, was emerging as, “a new principle of international law… in the interstices of contemporary definitions of sovereignty, self-determination, and the human rights of individuals and groups.”12 This chapter will address the West’s intervention from this perspective since, at the very least, both humanitarian and autonomy concerns combined in driving the international agenda.13 It has even been suggested that NATO’s 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 ‘autonomy dimension’ in the West’s approach to Kosovo ought to be treated seriously.   





Neil Walker, “Sovereignty and Differentiated Integration in the European Union,” European Law Journal  (): -. On  February  the EU presidency announced that member states were free to decide individually whether to recognise Kosovo’s independence. Most have done so. Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia, PA: University of Pennsylvania Press, ), . References to ‘autonomy’ in this chapter are very case specific and allude to particular models of self-government which were advanced specifically 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 defining 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 reflects the fact that in recent years there has developed within Europe, particularly in light of the collapse of Yugoslavia, Czechoslovakia and the USSR, a growing 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-Determination, Territorial Integrity and the NATO Intervention, Final Report (NATO Office of Information and Press, ), .


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

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 conflict and ameliorate humanitarian suffering, but to secure a political resolution to the perceived problem of Kosovo’s constitutional status. In Part 3 it will be suggested that recent Yugoslav 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 international 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: first, the recent memory of the UN’s failure to stop the internecine wars which characterised the SFRY’s dissolution (particularly the war in Bosnia), and the way in which the European Community’s 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 2

The Long Intervention: March 1998-March 1999

It is the contention of this chapter that throughout the twelve month period leading to the NATO bombing campaign, the international community was driven as much by a politico-constitutional as a humanitarian agenda. Despite this fact, it is easy to see how the gradual development from March 1998 onwards of a Western strategy in respect of Kosovo has been conceptualised almost exclusively in humanitarian terms. This is largely a consequence of the way in which the international community (and latterly NATO in particular) presented justifications for intervening in the internal affairs of the FRY based upon the need for conflict control and for the alleviation of humanitarian problems. This construction of a humanitarian intervention agenda in itself resulted from a perception that the only legal basis which could be turned to in order to overcome both the prohibition on the use of force and the protection of the FRY’s sovereignty and territorial integrity under international law, was a humanitarian one. Certainly, there is no doubt that humanitarian concerns were genuine ones. For example, in March 1998 the initial trigger for the West’s response clearly was the deterioration of the security situation in Kosovo, and, in particular, the clamp-down by FRY security forces on the operations of KLA militants – a clamp-down which resulted in further conflict and an increasingly tense refugee situation. As reports emerged in March-April, of a growing cycle of violence between the FRY and the increasingly militant KLA, the international community 

Below both Kosovo’s status as an ‘autonomous province’ of Serbia and the work of the arbitration process will be discussed.

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began to respond. Aside from the motivations behind Western involvement, it is also interesting that in the early stages of international pressure and throughout the coming months, the diplomatic efforts which were put in place would be marked by a high degree of co-operation and integration amongst a range of international and regional bodies. It is submitted that this concerted campaign of collective diplomacy of itself constitutes a form of intervention in the FRY’s affairs. The lead was taken initially by a Contact Group of the relevant power blocks of the USA, Russia and the EU (represented by the UK, France, Germany and Italy);16 and throughout the year to March 1999, this Group would attempt to build a coherent strategy which involved a variety of different organisations, in particular the UN Security Council, the Organisation for Security and Co-operation in Europe (OSCE), the European Union and NATO.17 Although the initial impetus for its establishment was the worsening security position, it was clear from the time of the Contact Group’s early work that the removal of Kosovan autonomy by Belgrade (a process which, as will be discussed below, had taken place since 1989) was also of considerable concern; and even at this early stage, as diplomatic pressure began to be exerted, a revision of Kosovo’s constitutional status was high on the international agenda. For example, the initial Contact Group Statement of 9 March 1998 set out a list of proposals by which it hoped to help resolve the violence in Kosovo. This listed various practical and immediate steps which are common in diplomatic initiatives of this type, such as a call for cessation of hostilities on both sides and an end to all forms of external support for such hostilities. What is notable, however, is that at this early stage the Contact Group also made clear its intention to secure a political settlement and to guarantee greater autonomy for Kosovo.18 Although this commitment was hedged with the qualification that any such autonomy arrangement should not affect the FRY’s territorial integrity, the March statement certainly represented more than a simple attempt to bring about a cessation of hostilities; at the very least it also served to recognise that the deteriorating military situation resulted from Kosovo’s emasculated constitutional status, and that the achievement of any long





An initial meeting of the Foreign Ministers of Contact Group states was held in London. Office of the High Representative, Statement of the London Contact Group Meeting,  March . The Contact Group had in fact been established in April  as the Contact Group for Bosnia and Herzegovina. See The Kosovo Conflict and International Law: An Analytical Documentation -, Cambridge International Document Series, ed. Heike Kreiger (Cambridge: Cambridge University Press, ), volume II, . An example of this was the effort 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 efforts 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?

term solution would require that this issue be addressed. The remainder of this section 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 attempts 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). a

Kosovo: The Self-Determination Dimension

The initial strategy pursued by the Contact Group in the Spring of 1998 was to pressurise the FRY into entering negotiations with moderate Kosovars led by Ibrahim Rugova of the Democratic League of Kosova (LDK) who distanced himself from the militant strategy of the KLA (political divisions amongst Kosovars themselves would remain a problem for international negotiators throughout the crisis and beyond). Although the Contact Group was keen that any such negotiations should involve international mediation (in particular that of Felipe Gonzalez who was nominated as the Personal Representative of the OSCE Chairman-in-Office),19 this plan met with firm resistance from the FRY government,20 which remained consistently hostile throughout the crisis to external interference in what it considered to be an issue of internal security.21 Instead, Belgrade responded to the Contact Group’s demand for autonomy for Kosovo with a referendum on 23 April 23 1998. This poll was held exclusively within Serbia (which included Kosovo within its republican borders). This served as a clear statement that Kosovo was not a republic within the FRY but was simple a province of Serbia, therefore reinforcing Kosovo’s weak constitutional status vis-à-vis the FRY as a whole. In the referendum, the Serbian people were asked for their views on international mediation, and they responded with a message of overwhelming opposition to the idea, thereby creating a mandate for Belgrade’s resistance to Contact Group pressure.22 At this early stage, with the Contact Group seeking autonomy for Kosovo, and Belgrade responding with a ref  



See UN Doc. S// ( July ). “Milosevic Rejects Mediation, Defies Sanctions,” Reuters,  May . In this early period the FRY’s resistance was maintained despite considerable pressure from the US which was the major player in the eyes of both Belgrade and Pristina. For example, in May lengthy talks took place between President Milošević and US envoy Richard Holbrooke, “US Sends Peace Broker Holbrooke to Yugoslavia,” Reuters,  May ; “US Envoy Holbrooke Starts Kosovo Mission,” Reuters,  May . For a discussion of FRY intransigence on the question of international mediation see Kofos, note  above, . “Serbs vote on Kosovo amid fears of Violence,” Reuters,  April . According to the Serbian Referendum Commission almost  voted against intervention (although the referendum was boycotted by ethnic Albanians) . See, “Serbs vote ‘No’ to West in Kosovo,” Reuters,  April . The referendum took place one week before a report by the UN Secretary-General to the Security Council, and was criticised by the OSCE as being a diversionary tactic and for having, “a disruptive effect on an already inflamed situation”. (Statement of the OSCE Troika,  April ). UN Doc. S//, ( April ), Annex II, para. .

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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 selfdetermination, the Yugoslav authorities could point to the April referendum as a clear expression of public faith in the Serbian authorities to reject external interference. 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 FRY’s consent (such a commitment to the FRY’s territorial integrity was included in the Contact Group’s March statement, and was thereafter repeated frequently by international organisations). This linkage between the principles of territorial integrity and self-determination highlights the legal and practical difficulties 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 constitutional 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-government 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 Bosnia’s 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 law’s credibility. If self-determination is open to reinterpretation so as to accord a right to statehood in response to new generations of group rights claims this may expose international law’s inherent vulnerability since it could lead to the meaning of self-determination as a legal principle being too readily open to processes of re-configuration 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?

to secessionist Kosovars.25 Throughout the crisis, the UN Security Council was also aware of this difficulty, and in its subsequent endorsements of greater autonomy for Kosovo it too confirmed 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 international quest for greater autonomy for an oppressed group, the oppressor state’s 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. Aren’t other values – preserving cultural identity, increasing meaningful and effective 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 inconsistencies which attend the right of self-determination, questions that would only come to a head as the final status of the territory became an imperative concern.28 b

Towards a Political Solution

As has been mentioned, the year from March 1998 to March 1999 was notable for the degree of international co-operation and the development of an integrated strategy with which the international community sought to approach the Kosovo problem. 



 

Admittedly the situation was, from another perspective, in fact, very different 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 experience 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 Justifications 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 Group’s attempts to secure a peaceful resolution of the conflict 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  (): -.

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This is evident in the use of sanctions which began with the Contact Group calling 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 Kosovo’s 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 Milošević was given an ultimatum, “to take rapid and effective steps to stop the violence and engage in a commitment to find a political solution to the issue of Kosovo through dialogue.”30 Since the Dayton Agreement concluded on 14 December 1995, and largely in consequence of the unsatisfactory situation in Kosovo, an ‘outer wall’ of United Statesled sanctions against the FRY had remained in place which prevented the FRY’s admission 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 confirmed 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 failure 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 repeatedly 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  

 



Contact Group Statement,  March , para. . Treating Milošević as personally responsible for the situation, the Contact Group made clear that he should within  days: “… commit himself publicly to begin a process of dialogue... with the leadership of the Kosovar Albanian community and co-operate in a constructive manner with the Contact Group in the implementation of the actions specified [in the Statement]... which require action by the FRY government.” Contact Group Statement,  March , para. . This was imposed immediately on  April . “Big Powers back New Sanctions on Yugoslavia,” Reuters,  April . Ibid. It should be noted that there was a general lack of enthusiasm for these measures from Russia, which indicated an underlying tension within the Contact Group which would eventually split the Group with the commencement of NATO’s air-strikes in March . “West Imposes Sanctions on Yugoslavia,” Reuters,  May . Once again Russia dissented from the decision.


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

begun between Milošević and Rugova on 15 May, the Group eased sanctions and decided not to put this ban into effect.34 The Contact Group’s strategy on the use of sanctions was endorsed by other actors. 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 conflict 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 Government of the FRY was co-operating with the UN’s 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 Council’s 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, “support for an enhanced status for Kosovo which would include a substantially greater degree of autonomy and meaningful self-administration”,39 is recognition of Kosovo’s 

   



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 Albanians suspend the talks scheduled for June  in the face of the advancement by Serbian/ FRY forces on civilian population centres, a scenario which prompted Albania’s 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 benefiting 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 affirmed that: “concrete progress to resolve the serious political and human rights issues in Kosovo will improve the international position of the Federal Republic of Yugoslavia and prospects for normalisation of its international relationships and full participation in international institutions”, (para ), but also affirmed that, “failure to make constructive progress towards the peaceful resolution of the situation in Kosovo will lead to the consideration of additional measures”. para. . SC Res , UN Doc. S/RES/ ( March ), para. .

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status as a ‘people’ with a right of ‘internal’ self-determination.40 Certainly Security Council resolutions throughout the period to March 1999 combined concerns with the worsening security situation with calls for Kosovar autonomy.41 Both the EU and OSCE were also involved in attempting to stimulate dialogue between the parties in terms of paragraph 16(a) of Res. 1160. Belgrade continued to insist that negotiations should be conducted by the Republic of Serbia and not by the FRY, which was another way of reinforcing the point that Kosovo was constitutionally part of Serbia. Kosovo Albanians objected to this arrangement since they wanted to negotiate directly with the federal FRY government. Another problem remained in Belgrade’s opposition to the involvement of an independent third party in negotiations; instead, Serbia offered ‘mediation’ by a representative of the FRY government and insisted that a solution must be found within the constitution of the Republic of Serbia. On 27 March 1998, the Chairman-in-Office of the OSCE Bronislav Geremek visited the FRY where he met authorities in Belgrade, Pristina, and Podgorica (the capital of Montenegro). During his talks with President Milošević in Belgrade, Milošević confirmed that the FRY would not be ready to accept OSCE demands concerning international mediation before taking back its seat in the Organisation. He indicated that he would be willing to negotiate with Mr. Gonzalez, on the condition that Gonzalez’s mandate would be limited to the question of readmittance of the FRY to the OSCE. As far as the EU was concerned this amounted to the establishment of a precondition,42 which the Security Council had declared to be unacceptable in paragraph 4 of Resolution 1160 (1998). In this early period, therefore, Western ire within both the EU and OSCE was raised as much by the failure to make progress towards a constitutional agreement as by humanitarian concerns.43 As the security situation deteriorated in the summer of 1998,44 and in light of the continuing failure on the part of the FRY to initiate talks, the Contact Group began    



Kumbaro, note  above, . SC Res. , UN Doc. S/RES/ ( September ) and SC Res. , UN Doc. S/ RES/ ( October ). UN Doc. S// ( April ), Annex , paras. -. The OSCE took the same view, (Annex II, para. ). It would, however, be artificial to attempt to separate these two issues too rigidly; one of the reasons a political settlement was sought was that it would help solve the humanitarian problems. Nonetheless the degree of international immersion in the details of such a solution indicated Western preoccupation with the constitutional issue. A large number of FRY troops were moved into Kosovo on  June. UN Doc. S// ( June ), paras. -. Throughout the Spring and Summer of  the Security Council continued to receive the Secretary-General’s reports pursuant to SC Res. , S/RES/ ( March ), which described mounting tension on the ground and continued fighting, echoing the findings of the EU and OSCE, e.g. UN Doc. S// ( June ), paras. -. This report also noted human rights abuses by both sides (paras. -), and an increase in the number of internally displaced persons leading to a significant flow of refugees to Albania from May onwards. Furthermore, the Secretary General identified the failed talks of May  and the continued refusal of Belgrade to accept the participation of Felipe Gonzalez as problematic, and he expressed his grave


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

to draw up a new peace plan which was to involve a much more detailed level of international pressure, including an elaborate plan for a constitutional solution to the perceived problem of Kosovo’s 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 independence 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 fighting had intensified as a result of a massive Serbian/FRY offensive against the KLA, which led ultimately to the collapse of this initiative.47 This offensive 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 Group’s June initiative by way of Res. 1199 (1998).48 One particular catalyst for this further Security Council resolution was the Secretary-General’s 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 offensive against the KLA. The prospect 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 efforts to prevent further escalation of the crisis. UN Doc. S// ( June ). See also: UN Doc. S// ( July ), para. ; and Information on the Situation 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 Office spokesman announced the demand by Contact Group ministers of an immediate cessation of all action by the security forces against civilians, unimpeded 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 Yugoslavia’s 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. .

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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 Group’s demands originally contained in the Group’s 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 West’s attitude when it came to commitments undertaken by the FRY in October 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-fire and then to a political settlement brokered by Richard Holbrooke.53 The October process had two main elements: first, was a two-part verification agreement whereby the FRY undertook to reduce its forces in Kosovo to pre-conflict levels, and assented to mechanisms by which this process could be verified;54 and secondly, (and very significantly given the Contact Group’s agenda over the previous eight months), was the main agreement which envisaged a political settlement to the crisis, signed on









 

The Secretary-General’s report in August followed the collapse of the Contact Group’s July initiative to broker a settlement, and included a report from the OSCE which highlighted that the Republic of Serbia continued to maintain the precondition that dialogue should be conducted within the framework of both Serbia and the FRY and that the territorial integrity of the FRY should fi rst be guaranteed. UN Doc. S// ( August ), Annex I, para. . The Secretary General’s reports were very influential: 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 affi 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 Council’s language was, by  October , to become 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 fighting 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?

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 diplomacy 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 November ; 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 supervision. Finally, the integrated nature of the international approach was further reinforced by the Security Council in Res. 1203 (1998) which endorsed these Agreements. 3

The Dissolution of Yugoslavia and Western Intervention

Having reviewed the intensity of Western efforts to secure an autonomy agreement for Kosovo from spring to autumn 1998, it is interesting to reflect upon why the international community reacted with such dedication and forcefulness in seeking to reach such an autonomy settlement, bearing in mind that the rights of disgruntled minorities elsewhere have not attracted such attention. The recent history of Yugoslavia seems to have been instrumental to the interest which Kosovo generated, since the international community was very conscious both of UN inertia in failing to prevent the wars which marked Yugoslavia’s collapse (in particular the war in Bosnia), and of the EC’s approach to state recognition from which Kosovo was excluded. The removal by both Serbia and FRY of much of the autonomy which Kosovo had enjoyed under the SFRY constitution of 1974, served only to cast Kosovo’s misfortune in an even starker light. a

The Spectre of Bosnia

For the Contact Group, the emerging crisis in 1998 was an unwelcome reminder of the aftermath of Yugoslavia’s collapse from 1991-2 and the mistakes of hesitancy and confusion which characterised, in particular, the international reaction to the ensuing war in Bosnia.57 There is certainly a sense in which the Western powers, in their  



All three agreements were endorsed by Serbia. An interim three year settlement was of course central to the Rambouillet Agreement eventually signed by the Kosovo Albanians on  March . See Marc Weller, “The Rambouillet Conference on Kosovo,” International Affairs  (): -,  and -. Articles which have chronicled the international response to the collapse of the FRY include: Christine Gray, “Bosnia and Herzegovina: Civil War or Inter-State Conflict? Characterisation and Consequences,” British Yearbook of International Law  (): -; Dominic McGoldrick, “Yugoslavia – The Response of the International Community and of International Law,”  Current Legal Problems - (); S. Sto-

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approach to the political situation in Kosovo from March 1998, were partly driven by a sense of guilt stemming from the UN’s failure to do more to prevent the Bosnian conflict. 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 field 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 significant in another sense: namely in the legal context of Yugoslavia’s 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 briefly the legal issues involved – in particular, those surrounding the recognition of new states.60 The Arbitration Commission established by the EC to adjudicate 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 first opinion that the SFRY was dissolving, thereby circumventing the difficult issue of secession.61 In light of the SFRY’s collapse, the Arbitration Commission









janovic, “The Destruction of Yugoslavia,” Fordham Journal of International Law  (-): -; Stephen Tierney, “In a State of Flux: Self-Determination and the Collapse of Yugoslavia,” International Journal on Minority and Group Rights  (): ; Marc Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia,” American Journal of International Law  (): -. He stated: “We are showing a degree of urgency in Kosovo which was unfortunately not present when the Bosnian crisis broke out in ”. The Guardian (London),  March . US News On-line World Report  April . See also Judah, note  above, . Stephen Tierney, “The Road Back to Hell: the international response to the crisis in Kosovo,” in Accommodating National Identity: New Approaches in International and Domestic Law, ed. Stephen Tierney (Leiden: Kluwer Law Publishers, ), -. In many ways the dissolution of Yugoslavia began with events in Kosovo in the late ’s. See Noel Malcolm, Kosovo: A Short History, (Basingstoke: MacMillan, ), i. Commentaries on the legal implications of the SFRY’s dissolution include: Colin Warbrick, “Recognition of States,” International and Comparative Law Quarterly  (): -; Colin Warbrick, “Recognition of States Part ,” International and Comparative Law Quarterly  (): -; Weller, note  above; Matthew Craven, “The European Community Arbitration Commission on Yugoslavia,” British Yearbook of International Law  (): -; Roland Rich, “Recognition of States: The Collapse of Yugoslavia and the Soviet Union,” European Journal of International Law  (): -; Dominic McGoldrick, note  above. Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No., International Legal Materials  (): . See also European Community: Declaration on Yugoslavia, International Legal Materials  (): -, and Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union,” International Legal Materials  (): -.


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

turned its attention to the recognition of new states in a process which would see Croatia, Slovenia, Bosnia-Herzegovina and Macedonia eventually emerge as independent 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 Montevideo Convention of 1933. Article 1 of this Convention contains what is essentially a value-neutral test of an aspiring new state’s viability; in short, this establishes a duty on states not to recognise a new state unless it satisfies 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 defined piece of territory with a clearly defined 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 demonstrate 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, recognition 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 criteria and its application as a form of intervention, since super-imposing criteria such as democratic and human rights considerations upon the standard recognition principles 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 Commission’s work remained fresh in the minds of Kosovar nationalists who considered it to be unfair. Although the EC had marked new departures 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 defined by the SFRY constitution of 1974) who met the recognition criteria. Applying the principle of uti possidetis juris which preserves existing boundaries, the EC   



The final status of the other two SFRY republics (Serbia and Montenegro) was not settled 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 state’s existence is simply one of fact with recognition serving only to evidence that fact. Zoran Oklopcic, “Populus Interruptus: Self-Determination, the Independence of Kosovo, and the Vocabulary of Peoplehood,” Leiden Journal of International Law  (): .

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determined that for the purposes of its recognition policy, Yugoslavia’s internal republican 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 convened by the EC at the Hague, was not considered.68 Kosovo’s grievances were increased by the inconsistency of the Western approach to Yugoslavia’s 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 Kosovo’s status remained to be finalised 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 Yugoslavia’s collapse seemed to be unfinished, 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 EC’s 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   





Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): . EC Press Statement, Luxembourg,  June . Letter to Lord Carrington, dated  December  (for the text of this letter see Krieger, note  above, ). See Judah, note  above, . The decision of the Badinter Commission that the SFRY was in a state of dissolution (Arbitration Commission, Opinion No.) has been called into question by the IIC. IIC Report, note  above, . The Hague Peace Conference gave some support for Kosovan autonomy in terms of a paper which stated that: “the republics shall apply fully and in good faith the provisions existing prior to  for autonomous provinces…” Peace Conference on Yugoslavia, Carrington Draft paper, “Treaty Provisions for the Convention”, UN Doc. S/ ( October ), Annex VII, para. . V. Surroi, “Kosova and the Constitutional Solutions,” in Kosovo: Avoiding Another Balkan War, ed. T. Veremis and E. Kofos (ELIAMEP: Athens, ),  and .


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

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 final insult was that the issue of Kosovo’s 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 EC’s commitment, enshrined in the 1991 Guidelines on recognition, to ensuring that minority rights are guaranteed before recognition is accorded to new states. It is perhaps 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 violent 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 SFRY’s 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. b

The Constitutional Status of Kosovo: Serbian Centralisation and the Development of Kosovo Albanian Separatism

The failure of Kosovo to secure statehood through the Badinter process was compounded by the deteriorating condition of Kosovo’s constitutional status, and in particular, by the way in which the autonomy it enjoyed under the 1974 SFRY Constitution was dismantled. Under the 1974 constitution Kosovo held the status of an Autonomous Province within Serbia and enjoyed political control over many areas of internal administration. However, crucially as it would turn out, Kosovars did not constitute a ‘nation’ in terms of the Constitution, which described the state as ‘having the form of a state community of voluntarily united nations and their Socialist Republics, and of the Socialist Autonomous provinces of Vojvodina and Kosovo’.74 When it came to the Badinter process, the reference to ‘nations’ in the Constitution would be crucial due to the connection between ‘nations’ and ‘their Socialist Republics’. ‘Nations’ in the SFRY were peoples having ‘their own’ republics, and a republic was defined by the ‘nation’ which formed the majority of its population (Serbs, Croats, Slovenians, Macedonians and Montenegrins). They were distinguished under the Constitution from ‘nationalities’; namely minority groups within the SFRY, whose ethnic group formed the majority population of neighbouring states such as   

Judah, note  above, . IIC Report, note  above, . Constitution of the Socialist Federal Republic of Yugoslavia, , Article .

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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 guarantees which also applied equally to Yugoslavia’s ‘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 Province 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 affairs. 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 Milošević 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 process 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 Constitution of the Republic of Serbia adopted in 1990. These changes required the approval  



 

Constitution of the Socialist Federal Republic of Yugoslavia, , Basic Principles. The distinction between nations and nationalities can also be found in the Spanish Constitution of , Article : “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.” See Situation of Human Rights in the Territory of the Former Yugoslavia: Special Report on Minorities, Periodic Report submitted by Elisabeth Rehn, Special Rapporteur of the Commission on Human Rights, Pursuant to Paragraph  of Commission Resolution /, Report of the Commission on Human Rights, UN Doc. E/CN.// ( October ), Chapters I and II; and Krieger, note  above, -. Laura Silber and Allan Little, Yugoslavia: Death of a Nation (London: Penguin, ), . Surroi, note  above.


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

of Kosovo’s legislative assembly, and by the placing of pro-Milošević personnel in the assembly and by the threat of force, this approval was achieved.80 The process extensively centralised many important areas of power, thereby reducing substantially the powers of Kosovo as an Autonomous Province.81 As the Special Rapporteur of the Commission on Human Rights noted: “Under its [i.e. the 1990 Constitution’s] provisions the ‘autonomous provinces’ retained some authority over the provincial budget, cultural matters, education, health care, use of languages and other matters, but the authority was thenceforth to be exercised only in accordance with decisions made by the Republic. In fact, the new Constitution gave the Republic the right directly to execute its decisions if the provinces failed to do so.”82 Tim Judah also observed: “Although legally the province still existed, the changes meant they were no longer autonomous.”83 In fact the formal constitutional status of Kosovo as an autonomous province (although one stripped of any substantive autonomy) was useful to Milošević at this time, since with Montenegro, Kosovo and Voivodina under his influence, he controlled four of the eight seats on the federal presidency.84 In addition, a new federal constitution was promulgated in 1992 which also served to consolidate Kosovo’s emasculation within the FRY as a whole.85 Crucially, both constitutions outlawed secession from Serbia and the FRY respectively,86 thereby combining to preclude the possibility of Kosovo gaining either independent statehood or the status of a republic within the FRY but independent of Serbia. Kosovo opposed these changes strongly, and a defining moment in this campaign of resistance came on 2 July 1990 with a political declaration by the Parliament of Kosovo which declared the Autonomous Province to be a republic of the Yugoslav Federation.87 Shortly thereafter the parliament and government of Kosovo were dissolved by the Republic of Serbia which in turn led a number of deputies from the Kosovo provincial parliament to issue a declaration of independence; this resulted in the proclamation of the Constitution of the Republic of Kosovo on 7 September 1990 shortly before the adoption of Serbia’s new Constitution. On 22 September 1991, with war having broken out in Croatia, an unofficial referendum was held in Kosovo to validate this declaration of independence.88 Backed by the overwhelmingly positive

        

Judah, note  above, -. Kofos, note  above, . Rehn, note  above, Chapter II(c). Ibid. . Ibid. For the relevant amendments to both the Serbian and FRY constitutions see Krieger, note  above, -. Constitution of the Republic of Serbia, , Articles  and ;  Constitution Article ,  and . Surroi, note  above, . The referendum was conducted between  and  September  and was largely clandestine.

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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 first, 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 disobedience.91 Following these developments, relations between Kosovo and both Serbian and Federal authorities in Belgrade effectively broke down, leading ultimately by the spring of 1998 to the armed conflict 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 conflict of the late 1990s, within the broader theatre of the West’s 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 Yugoslavia’s 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 offer Kosovo any practical succour. Despite the lip-service offered to Kosovo’s right to internal self-determination, it was clear that Belgrade, able to hide behind its territorial integrity, had in effect carte blanche to ignore the EC’s plaintive demands for Kosovar autonomy; Milošević could rely upon the uti possidetis rule applied in 1991-2 which did nothing to mitigate, and thereby could be seen tacitly to approve, Belgrade’s earlier 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

 



Of ,, eligible voters,  participated and . voted for an independent Republic of Kosovo. See International Crisis Group, Kosovo Report,  March ; Miranda Vickers, Between Serb and Albanian: A History of Kosovo (New York: Columbia University Press, ), -; Kumbaro note  above, . Rehn, note  above, Chapter II(c) also confirms that over  of those taking part opted for independence. His party is reported to have polled . of the vote in the unofficial election. International Crisis Group, note  above, . Vickers, note  above, - and Kofos, note  above, -. This government attempted to function abroad, see International Crisis Group at , but its real influence has been perceived to be marginal, ibid. . Kumbaro, note  above, , and IIC Report, note  above, -.


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

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 autonomous 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 constituted 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-determination 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 systematic 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 differentiated 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. c

The Rambouillet Process

In a sense then, both the disadvantageous outcome which resulted for Kosovo from the EC Arbitration process, and the constitutional changes in Serbia and the FRY which served to aggravate this outcome, may help explain why the international re

 



A distinction described by Tim Judah as “constitutional sophistry,” Judah, note  above, . On the attitudes of Kosovars to this perceived injustice see Surroi, note  above,  and . Kumbaro, note  above, -. This is a reference to UN General Assembly Declaration  which in a general commitment to the territorial integrity and political unity of sovereign and independent states hints that a state’s entitlement to territorial integrity might be weakened if the state is not conducting itself, “in compliance with the principle of equal rights and selfdetermination of peoples”, and specifically where it is not, “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. The Follow-up to the Kosovo Report: Why Conditional Independence? (IIC, ), .

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sponse to the Kosovo crisis involved a diplomatic effort 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 difficult to conclude that considerations like those which preoccupied the Independent Report were not also at work in motivating Western governments as they made strenuous efforts to reach an autonomy solution for Kosovo. The international initiative begun in March 1998 became nothing less than an attempt to impose an overall constitutional settlement which would restore Kosovo’s 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 unfulfi lled assurances 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 continued 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 final diplomatic push for a solution to the crisis. NATO held an emergency meeting on January 17,100  

UN Doc. S// ( November ), paras. -. By the end of December, there was still no progress on reaching a political settlement despite the deadline of  November having come and gone. The Secretary-General reported, “alarming signs of potential deterioration”. UN Doc. S// ( December ), para. , and that violence had reached its highest level since the  October Agreement. Similarly the humanitarian problems remained very severe with the UNHCR estimating that , people remained displaced within Kosovo. Ibid. para. .  The build up to the Rambouillet process and the final ultimatum from NATO which eventually triggered air strikes can be traced to a massacre reported on  January  where at least forty five people from the village of Racak near Pristina were reported to have been killed by the security forces. President Clinton declared: “This was a deliberate and indiscriminate act of murder designed to sow fear among the people of Kosovo... it is a clear violation of the commitments the Serbian authorities have made to NATO. There can be no justification for it.” US Ambassador William Walker, the head of the OSCE force monitoring the cease-fire also accused Serbian security forces of mass murder. “Villagers Slaughtered in Kosovo ‘Atrocity’ Scores Dead in Bloodiest Spree of Conflict,” The Washington Post,  January . For reports of earlier violence on both sides see also OSCE Press Release No. /,  December , and US Department of State Office of the Spokesman, Statement,  December .  “US: NATO Set To Strike vs. Serbs,” Associated Press ( January ). The OSCE also held an emergency meeting on  January, “Kosovo Massacre: OSCE Calls Emergency


Chapter 8, Stephen Tierney – The Long Intervention in Kosovo: a Self-Determination Imperative?

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 NATO’s strategy was designed to avert a, “humanitarian catastrophe”.103 What is remarkable about this final 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 Judah’s 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 FRY’s refusal to







 

Meeting,” Associated Free Press,  January . Contact Group statement, London,  January . On the background to this meeting see, “Big Powers To Summon Kosovo Sides To Peace Talks,” Reuters,  January ; “US Discloses Plan To Impose Kosovo Settlement,” Reuters,  January . At the same time NATO issued fresh warnings, and expressed its preparedness to back with force the final political initiative launched by the Contact Group on  January. Javier Solana announced, “NATO stands ready to act and rules out no option... The North Atlantic Council has decided to increase its military preparedness to ensure that the demands of the international community are met.” Hence an ultimatum was issued to both sides that they must agree to meet for peace talks within a week or face the consequences. “NATO Warns Both Sides in Kosovo,” Reuters,  January ; “Major Powers To Give Ultimatum On Kosovo,” Reuters,  January . On  January, the NAC agreed that Secretary-General Solana could authorise air strikes against targets on Yugoslav territory. He stated, “NATO stands ready to act. We rule out no option to ensure full respect by both sides in Kosovo for the requirements of the international community”. Statement by NATO Secretary-General, NATO Headquarters,  January . “Washington Renews Warnings to Serbs over Accepting Kosovo Agreement,” Associated Free Press,  February . Judah, note  above, .

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do so led directly to air-strikes, following a final intervention by the OSCE,106 commencing on March 24 in Operation Allied Force.107 Perhaps more than any other initiative over the previous twelve months, the Rambouillet process highlights the Western preoccupation with Kosovan autonomy. It emerged at a time when the refugee situation was getting worse but in other ways the situation on the ground was arguably less serious than it had been in the late summer/autumn of 1998.108 Furthermore, it provided a programme of detailed autonomy for Kosovo, but only for three years, stating that: “Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party’s efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures”.109 Despite the commitment to Kosovar autonomy, reference to the Helsinki Final Act once again illustrates the West’s ambivalence on the self-determination question, in particular on the question of statehood for Kosovo. On the one hand, on offer was a final solution in three years which Kosovar nationalists hoped would lead to independence, but the reference to the Helsinki Final Act was a reminder of the commitment in that document to the territorial integrity of existing states. Nonetheless it is notable that air-strikes commenced in direct consequence of the failure of the FRY to sign the agreement. Although the language of justification was couched in humanitarian terms (and humanitarian concerns were certainly real with the UNHCR reporting on 19 March that 250,000 persons in Kosovo were still displaced), it seems that references to humanitarian problems were also instrumental in that they served as legal justification for military intervention.110 Also crucial to the commencement of bombing was the collapse of Rambouillet, the importance of which is seemingly borne out by the recollections of Richard Holbrooke from his last meeting with Slobodan Milošević shortly before the bombing started. As Judah notes: “Instead of mentioning that tens of thousands were again in flight, he says he told Milosevic that Serbia would be bombed: ‘if you don’t change your position, if  The OSCE reported that Chairman-in-Office Norwegian Foreign Minister Knut Vollebaek, telephoned President Milošević on  March and urged him to accept the Rambouillet 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 operations 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 verified 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 significantly 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?

you don’t agree to negotiate and accept Rambouillet as the basis of the negotiation.”111 This leads Judah to conclude that the West’s 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 primary 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 accorded exclusively to sub-state constitutional republics as Yugoslavia dissolved.113 This restriction has sown predictable seeds. The war in Bosnia was one, and the endless machinations over the final status for Kosovo is another. As the international community attempts to arrive at a final 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 guaranteed.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 arguments. Kumbaro’s 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 finds the legal basis for this assertion in the Declaration on Friendly Relations. A similar approach 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 Rambouillet 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 resolutions.  For example, the contrasting fortunes of the self-confident, 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 Affairs Committee Report which states: “Independence is … out of the question until the safety of Kosovo’s minorities can be guaranteed.” (emphasis added), HC Foreign Affairs 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 Republic of Croatia by the European Community and its Member States, Opinion No., International Legal Materials  (): . See also Laponce, note  above.  Kumbaro, note  above,  and .

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declaration but which, in substantive terms, offers a similar argument to Kumbaro’s: “it is important to emphasise the normative case for Kosovo’s independence. In legal terms, the case for self-determination of Kosovar Albanians arises for systematic abuse of human rights over a long period.”116 This led the IIC to recommend ‘conditional independence’ for Kosovo,117 and we saw how prominent states began to move their positions in this direction. The British House of Commons Foreign Affairs Select Committee Report, for example, in 2001 offered cautious encouragement: “This is in many ways an attractive model, although we know of no precedent for such an arrangement.”118 The application of a right of external self-determination to Kosovar Albanians does not, according to either Kumbaro or the IIC, necessarily raise the age-old Pandora’s Box threat of widespread secession.119 Kumbaro’s reference to the Friendly Relations Declaration suggests that for her, Kosovo represents an extreme case of human rights abuses, and that Kosovo’s entitlement to exercise external self-determination is not one likely to be shared by many other sub-state peoples throughout the world. The IIC Report was explicit on this point; referring to the, “systematic abuse of human rights over a long period”.120 The Report continues: “The same claim cannot be made by Serbs in Bosnia or by Albanians in Macedonia. Indeed, any group that has the temerity to claim that its situation is comparable to that experienced by Kosovar Albanians before 1999, as in Macedonia for example, should be sharply disabused.”121 Nonetheless, as Kosovo moves towards full recognition as an independent state questions are being raised as to whether or not the international community is taking a wider approach to the self-determination principle than the vigorous delimitation of this principle through the post-war colonial model would seem to permit. It would also suggest that the act of recognition of a new state can itself be an instru-

 IIC, note  above, . This conclusion highlights a possibly emerging relationship between 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 Franck’s 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 Yugoslavia’s 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?

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 secession 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 continuing, 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 egregious 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 Kosovo’s secession by a number of states124, and indeed highly 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 offered by both Kumbaro and the IIC would seem to offer the basis for a more principled way to proceed, and one which more faithfully reflects 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 Kosovo’s autonomy by Belgrade, but that, with Belgrade’s authority over Kosovo effectively ended, the United Nations Interim Administration Mission in Kosovo (UNMIK) in effect performed the role of preserving the FRY’s technical territorial integrity in the face of a clear desire for independence by Kosovar Albanians. The West, having struggled for so long to restore Kosovo’s autonomy from the grip of constitutional centralisation, was left with the task of trying to secure the FRY’s 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 potentially wider implications, is a growing sense, certainly within Europe, that national minorities are entitled to better recognition of their rights as minorities, and perhaps even to a right of autonomy. Various instruments have made a move in this

 Nikolaos Tsagourias, “International Community, Recognition of States, and Political Cloning,” in Towards an ‘International Legal Community? The Sovereignty of States and the Sovereignty of International Law, eds. Stephen Tierney and Colin Warbrick (London: British Institute of International and Comparative Law, ), .  Hannum, note  above, .  E.g. Russia. A number of EU states have not yet recognised Kosovo including Spain which perhaps fears setting a precedent for its own internal national minorities.  Robert Jennings, “Kosovo and international Lawyers,” International Law Forum  (): .

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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 Effective 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 removal of that province’s autonomy even more embarrassing for the European powers – 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 minorities; in this context the final solution to Kosovo’s 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.

 International Legal Materials  (): .  Foundation on Inter-Ethnic Relations, The Lund Recommendations on the Effective Participation of National Minorities in Public Life & Explanatory Note (The Hague: Foundation on Inter-Ethnic Relations, ).  Paradoxically the initiative of promoting autonomy for national minorities as in the Lund Recommendations, may in fact have been undermined by the Badinter process. For example, unitary states may now be very wary of introducing federal arrangements given that it was their status as federal republics in both the USSR and SFRY which permitted territories to apply for recognition as independent states, as these two federations collapsed. Indeed throughout the negotiations on Kosovo’s future, Belgrade was reluctant to concede republican status to Kosovo by way of a so-called ‘three republic’ solution, one reason being that it was felt that republican status would be used by Kosovo as a stepping stone to full independence.


Chapter 9

Kosovo’s Independence: Re-Examining the Principles Established by the EC Badinter Commission in Light of the ICJ’s Advisory Opinion 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 Commission’s fifteen Opinions1 have significantly influenced 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, Kosovo’s Unilateral Declaration of Independence in 2008 casts doubt as to whether the principles established in the Commission’s opinions remain valid, because they explicitly precluded 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 Kosovo’s 

  

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 International Law,” International Journal on Minority and Group Rights  (): ; Martti Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice,” International and Comparative Law Quarterly  (): . Z. Nectagil, The Cyprus Question and the Turkish Position in International Law (Oxford: 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/selfdetermination/countrystudies/quebec/quebec.htm; Peter Radan, “The Borders of a Future Independent Quebec: Does the Principle of Uti Possidetis Juris Apply?” Australian Journal 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.


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experience which is now invoked by secessionist movements and may potentially impact on state practice.6 After a brief overview of its establishment and mandate, the first part of the chapter discusses the content of relevant opinions of the Badinter Commission (mainly Opinions Nos. 1-3), while part two highlights events leading to Kosovo’s unilateral secession. Part three then analyses the advisory opinion of the International Court of Justice (ICJ) on Kosovo’s independence. In conclusion, the chapter assesses the impact of the advisory opinion on the applicability of the principles of uti possidetis juris and self-determination as interpreted by the Badinter Commisson. 2

The Badinter Commission’s Opinions

a

A Historic Overview of the Badinter Commission’s Establishment and Mandate

On 27 August 1991, the EC adopted a ‘Declaration on Yugoslavia’ which aimed to deal with the fragmentation of the SFRY. Under the Declaration the EC established the Badinter Commission to ensure that the process of accommodating the conflicting interests of the Yugoslav peoples was resolved peacefully. Although the Badinter Commission is referred as if it was engaged in ‘arbitration’ it lacked the features of a classic arbitral body. Thus, it was not established by the parties to a dispute: neither the SFRY, nor any of its constituent republics were members of the EC; in addition, the Declaration on Yugoslavia did not specify the applicable law.7 Given that the Commission was composed of five judges of the EC member states’ constitutional courts, it would be logical for the Badinter Commission to apply the federal constitution of the SFRY. However, in addressing questions posed by Lord Carrington, the Chairman of the EC Peace Conference on Yugoslavia, the Badinter Commission mainly applied rules of international law. This may explain why there is so little discussion of law in the opinions and some of them, such as 1 to 3 may be described as vague and unclear. Moreover, initially the opinions of the Badinter Commission played only a consultative role and were not legally bind-

“Africa: Kosovo Vote Could Impact Continent”,  March . Accessed  September . http://allafrica.com/stories/.html; Simon James, “EU Reactions to Kosovo’s Independence: The Lessons for Scotland,” August . Accessed  September . http://www.ucl.ac.uk/constitution-unit/fi les/media/articles//Kosovo. pdf; Kamer Kasim “Cyprus Question and Kosovo”,  February . Accessed  September . http://www.turkishweekly.net/columnist//cyprus-question-and-kosovo.html. Michla Pomerance, “The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence,” Michigan Journal of International Law  (): .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

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 Slovenia’s declarations of independence in 1991, the EC invited the six constituent republics of the SFRY, namely the Republics of BosniaHerzegovina, 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 differences submitted by ‘relevant authorities’. Significantly, the Declaration on Yugoslavia failed to specify these authorities, and it was mainly Lord Carrington who formulated questions and sought the Badinter Commission’s opinion. The role of the Badinter Commission in practice, however, was to provide legal justification for the political decisions of the EC.10 In particular, by suggesting that only the republics of the SFRY, and not autonomous units could apply for recognition, the EC established that, “former internal federal borders would become international borders upon the recognition of statehood of a seceding federal unit.”11 The following two sections briefly outline the relevant principles as established by the Badinter Commission in Opinions Nos. 1-3. b

Territorial Integrity of States and the Principle of Uti Possidetis Juris

From the outset, the Badinter Commission strongly upheld the principle of the territorial integrity of states in line with the EC’s stance on the recognition of the constituent republics in the EC Declaration on Recognition12 and Guidelines on Recog



 

For example, the EC chose not to follow two of the Opinions of the Badinter Commission. Thus, the EC recognised Croatia before it fulfi lled conditions as outlined in the Commission’s opinion: Opinions on Questions Arising from the Dissolution of Yugoslavia, 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 Macedonia 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: Germany’s Recognition of Slovenia and Croatia,” Ethics and International Affairs  (). Reconstitution of the Arbitration Commission, and Rules of Procedure,  January- April , International Legal Materials  (): -. For discussion see Pomerance, 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  (): .

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nition of New States.13 Significantly, in light of Croatia and Slovenia’s declarations of independence on 25 June 199114 and similar events taking place in Macedonia and Bosnia-Herzegovina, it was difficult to reconcile the principle of territorial integrity with the right of the republics to secede from the SFRY. To confirm the EC’s position on the matter, as well as to avoid setting precedents for other secessionist movements in other countries, in its Opinion No. 1, the Badinter Commission ruled that the SFRY was in the process of dissolution.15 The difference between dissolution and secession is that in the former process there is no formal successor of the pre-existing state, while in a case of secession the previous sovereign continues its existence.16 Having established that the SFRY was in the process of disintegration, in Opinion No. 3, the Badinter Commission ruled that all internal administrative borders became international frontiers protected by international law and could not be altered except by an agreement between newly created states.17 Significantly, the Badinter Commission overlooked the fact that the internal administrative borders of the SFRY were never intended to become international frontiers, as Radan demonstrated in an historic overview of the evolution of the SFRY’s internal borders.18 On the contrary, their purpose was to integrate various groups co-existing within the SFRY. Moreover, given that the federation was symbolic, the boundaries had a formal character.19 Besides, international law does not protect administrative boundaries. The doctrine of inviolability of borders applies only to international frontiers, therefore, it was not a sound justification for insisting that the SFRY’s administrative boundaries should remain intact.20 Nevertheless, to avoid territorial disputes between the republics, the Badinter Commission confirmed the EC’s position, stating that the internal boundaries would become international frontiers. The Commission justified this finding based on the principle of uti possidetis juris. It claimed that this principle, which initially applied in the process of decolonisation of Central and South America and Africa to solve frontier disputes between colonial powers, had became a general principle of inter



     

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 Materials  (): . For discussion of Croatia and Slovenia’s secession see Peter Radan, “The Badinter Arbitration 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. , International Legal Materials  (): . Peter Radan, “Yugoslavia’s Internal Borders as International Borders: A Question of Appropriateness,” East European Quarterly : (): -. Ibid. . Radan, note  above, ; Malcolm Shaw, “Peoples, Territorialism and Boundaries,” European Journal of International Law  (): .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

national law. To confirm this finding 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 specific 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 ...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 fit the definition 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 authors strongly criticised the Badinter Commission for the misapplication of international 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 boundaries 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    

 



Burkina Faso and Mali (Frontier Dispute),  ICJ  ( December). Ibid. . Radan, note  above, . Hurst Hannum, “Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?” Transnational Law and Contemporary Problems  (): ; Peter Hilpold, “The Kosovo Case and International Law: Looking for Applicable Theories,” Chinese Journal of International Law : (): ; Enver Hasani, “Uti Possidetis Juris: From Rome to Kosovo,” The Fletcher Forum of World Affairs : (): . Radan, note  above, . Honduras Borders Case (Guatemala/Honduras) Reports of International Arbitral Awards  (): , -, ; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),  ICJ , para  ( September); for discussion see Fernanda Jankov and Vesna Ćoric, “The Legality of Uti Possidetis in the definition of Kosovo’s Legal Status,” -. Accessed  September . http://www.esil-sedi.eu/fichiers/en/ Agora_Fernandez_.pdf. Radan, note  above, .

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In contrast, others welcomed developments stemming from the Badinter Commission’s interpretation. Shaw, for example, argued that since its creation, the principle of uti possidetis juris has significantly evolved and it is only natural that the Badinter Commission should further expanded the scope of its application.28 Similarly, Koskenniemi noted that the Commission vigorously affi rmed the principle of uti possdetis juris, suggesting that the principle had been applied correctly.29 Nevertheless, because the decisions were made based on geopolitical concerns as opposed to the unique circumstances of the former Yugoslavia, the principle that, “borders should not be altered except by mutual agreement has been elevated to a hypocritical immutability that is contradicted by the very act of recognizing secessionist states.”30 An overall impact of these principles as interpreted by the Badinter Commission is twofold: first, the principle of uti possidetis juris is invoked beyond the former Yugoslavia; second, it seems that the application of the principle is confined mainly to federal states. Such application stems from Opinion No. 1, where the Badinter Commission noted that in a federal-type state, if constituent units of the state fail to participate in the exercise of political power within the common federal institutional framework, the state may effectively cease to exist. The effect of this finding is that many states which fear that minority groups may wish to secede are reluctant to devolve powers to such groups; by way of example, Turkey rejects Kurdish demands for federal arrangements out of fear of secessionist trends.31 Thus, the territorial integrity of states and the inviolability of borders are accorded maximum protection. Then, where does this leave us as to the question of self-determination and protection of minority rights in a state – other two important principles which the Badinter Commission had innovatively interpreted? The following section overviews the Commission’s reasoning on these two principles. c

Self-Determination and the Protection of Minorities

From the standpoint of minority protection and their right to self-determination, it is the Commission’s Opinion No. 2, which is of particular interest. On 20 November 1991, on behalf of the Republic of Serbia, Lord Carrington asked the Commission to address the following question: “Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?” In addressing this question, the Badinter Commission based its decision on three main principles of international law: the territorial integrity of states, minority protection and the right to self-determination. Thus, in Opinion No. 2, the Badinter Commission forcefully established that: “whatever the circumstances, the right to self-determination must not involve

   

Shaw, note  above, -. Koskenniemi, note  above, . Hannum, note  above, . Radan, note  above, ; Radan, note  above, .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise.”32 Thus, effectively, the Badinter Commission sealed the borders established as a result of the former Yugoslavia’s dissolution. If borders cannot be altered, then how can a group exercise the right to selfdetermination? 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 international law. Moreover, “the – now peremptory – norms of international law require states to ensure respect for the rights of minorities.” Consequently, the Serbian population 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 International 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 Commission’s 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 findings had a mixed reception. Where minority rights are concerned, the Badinter Commission expressed the view that their protection constituted 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 standard 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 efforts to elaborate specific rules on minority rights culminated in the Framework Convention for the Protec 

 

Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): , para. . Given the outbreak of wars and ethnic cleansing initiated by Serbia in Bosnia-Herzegovina and Croatia, it was not possible to satisfy this requirement prior to the conclusion of the Dayton Peace Agreement in . General Framework Agreement for Peace in Bosnia and Herzegovina,  December , International Legal Materials  (): . Opinion No. , note  above, para. . Jennifer Preece, “National Minority Rights vs. State Sovereignty in Europe: Changing Norms in International Relations?” Nations and Nationalism : (): .

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tion of National Minorities (FCNM) – the first multilateral legally binding treaty on the rights of minorities, which came into existence in 1995. Therefore, the Commission’s 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 Commission’s view, the exercise of this right was limited to choice of identity or nationality. Before we analyse this statement, let us first briefly overview the traditional approach to the principle of self-determination. There is no definition of the term ‘self-determination.’ The content of this principle, however, evolved significantly since its inception. Self-determination emerged as a political principle after World War I and during the first 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 decolonisation, it transformed into a legally binding right to be free from colonial domination.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 increasingly invoked, ‘internal self-determination’ is the right to effective participation in the political process within a state.39 Significantly, 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 territorial 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 affirmed that, while self-determination applied to minorities, such as Serbs, it did not entitle them to claim statehood; instead, selfdetermination in this context was reduced in content to human and minority rights,





  

Michael Kelly, “Political Downsizing: the Re-emergence of Self-Determination, and the Movement Towards Smaller, Ethnically Homogenous States,” Drake Law Review  (-): . Snežana Trifunovska, “One Theme in Two Variations – Self Determination for Minorities and Indigenous Peoples,” International Journal on Minority and Group Rights  (): . Ibid. . Ibid. Morag Goodwin, “From Province to Protectorate to State? Speculation on the Impact of Kosovo’s Genesis upon the Doctrines of International Law,” German Law Journal : (): .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

and to autonomous structures of governance in areas where the Serbs constituted a local majority.41 Accordingly, the Badinter Commission’s construal implied that self-determination was, “clearly understood to be a territorial, not an ethnic principle”,42 because irrespective of the ethnic arguments of Serbs, independence was restricted to former republics; furthermore, sub-state units within republics were not entitled to secede. However, referenda on secession in Slovenia and Croatia which constituted the basis for their self-determination, “occurred within the confines of federal units of the former Yugoslav state, rather than the state as a whole.”43 The Badinter Commission itself confirmed that Slovenia and Croatia seceded before the SFRY’s dissolution began: in Opinion No. 11, the Commission noted that those states became independent on 8 October 1991, while the process of dissolution of the SFRY had commenced on 29 November 1991.44 By insisting that the former Yugoslavia dissolved and therefore no secession took place, the Badinter Commission confined the operation of selfdetermination within a territorial framework, instead of an ethnic one. As to the Badinter Commission’s equation of the principle of self-determination under common Article 1 of the Covenants with the right to identity, according to Pellet, although the Commission’s statement may appear superfluous it is, “in fact fundamental: it means that each and every man or woman who calls upon this right might choose the group to which they belong.”45 In effect, the Commission established that Article 1 of the ICPPR and the ICESCR stipulate the right of minorities to personal autonomy, i.e., the right to identify with a minority group if an individual so chooses. However, it appears that the Badinter Commission confused an individual right to choose identity with the collective right to self-determination.46 An individual right to identity is now enshrined in Article 3(1) FCNM, which states that: “[e]very person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.” The purpose of this right is to ensure that group members who do not wish to be regarded as a minority are not treated as such.

 

  



Mark Weller, “The Rambouillet Conference on Kosovo,” International Affairs : (): . Mária Kovács, “Standards of Self-Determination and Standards of Minority-Rights in the Post-Communist Era: a Historical Perspective,” Nations and Nationalism : (): -. Radan, note  above, . Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , International Legal Materials  (): . For discussion see Radan, note  above, . Alain Pellet, “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples,” European Journal of International Law  (): . Hannum, note  above, .

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In contrast, Article 1 ICCPR is much broader. As the UN Human Rights Committee noted in its General Comment 12 on the right to self-determination of peoples, this right is of particular importance because: “its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.”47 Moreover, in its communications on Article 1 ICCPR, the Human Rights Committee established that only peoples as such and not individuals can submit collective claims under this provision.48 Consequently, the Badinter Commission’s apparent theoretical ‘widening’ of the definition of self-determination so as to embrace the individual ‘self’ had the practical effect of restricting the right of some of the claimants to the collective right of complete selfdetermination and independence.49 It is, furthermore, argued that by confining the principle of self-determination to the right to identity, the Commission, without an express statement to that effect, “appeared to link the rights of minorities to the rights of peoples.”50 The Commission argued that not only was the term ‘peoples’ undefined, but also there were no rules on how the right to self-determination of peoples should be exercised; therefore, in the Commission’s view: “in its present state of development, international law does not make clear all the consequences which flow from this principle.” Pellet, in his favourable reading of Opinion No. 2, maintained that: [T]he notion of ‘people’ is no longer homogeneous and should not be seen as encompassing 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 benefit from ‘all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their national identity’.51

This approach has been, however, strongly criticised for adding, “nothing to our understanding of the crucial distinction between minorities and peoples.”52 Furthermore, by invoking various principles of international law without clear and convincing reasoning, the Badinter Commission, “only revived the fruitless search for definitions of ‘self,’ ‘determination,’ ‘peoples,’ and related terms that have never been capable of providing reasoned criteria for international action.”53 



    

Human Rights Committee, General Comment No. : The Right to Self-determination of Peoples (Article ),  March , para. . Accessed  September . http://www. unhchr.ch/tbs/doc.nsf//fcdffcedb?Opendocument. See, for example, Kitok v. Sweden, Communication No /, UN Doc. A//,  ( July ); Apirana Mahuika et al. v New Zealand, Communication No /, UN Doc. CCPR/C//D// ( October ). Pomerance, note  above, , footnote . Pellet, note  above, . Ibid. Hannum, note  above, . Ibid, .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

In addition, the Badinter Commission’s reference to the choice of nationality as one of the means of exercising the right to self-determination caused further confusion, because the Commission failed to clarify whether it differentiated between ‘nationality’ and ‘citizenship.’ Foster rightly maintained that this statement can be dealt with only, “by restricting nationality purely to a statement of identity”,54 instead of regarding it as an external aspect of a legal connection between an individual and a state in international law. Thus, the Commission’s reasoning was not always clear. Moreover, the opinions prompted commentators to make sense of them by providing their own reading of the principles as elaborated in the opinions. Despite these deficiencies, it appears that the principles established by the Badinter Commission resonated with the international community and have influenced state practice. Where territorial integrity is concerned, by applying the principle of uti possidetis juris, the Commission insisted that there should be no secession from the newly established states. Furthermore, the Commission limited the reading of the principle of self-determination to the choice of identity or nationality. These findings are, however, challenged by the Unilateral Declaration of Independence of Kosovo on 17 February 2008. Before we evaluate the validity of the Badinter Commission’s Opinions in light of the ICJ’s Advisory Opinion on Kosovo’s independence, it may be useful to overview briefly the events which led to Kosovo’s external self-determination. 3

Setting a Precedent? Kosovo’s Unilateral Secession

Historically, relations between Serbians and Kosovo Albanians have been tense due to a power-struggle to dominate Kosovo. Where historic claims to the territory are concerned, it is disputed whether Albanians are descendents of Illyrians who inhabited the region in the ancient times or arrived in the middle ages; the fact that Slavs arrived to the present-day Kosovo in the 5th and 6th century and gained political control by the 12th century is less contested.55 Subsequently, in the 12th and 14th centuries, Serbs built a number of monasteries and orthodox churches, transforming Kosovo into the centre of Serbian religion and culture. The influence of Serbs in Kosovo remained strong until the Ottoman Empire’s occupation in the 14th century. Since the 14th century, not only did Albanians migrate to Kosovo in large numbers, but also they converted to Islam, thus widening the cultural gap between Serbs and Albanians. Following two unsuccessful attempts by Serbs to overthrow the Turkish rule in 1689 and 1813, retaliation by the Ottoman Empire drove Serbs from the province again, allowing further migration of Albanians into the area.56 Only as the result of the war between Russia and the Ottoman

  

Caroline Foster, “Articulating Self-Determination in the Draft Declaration on the Rights of Indigenous Peoples,” European Journal of International Law  (): -. Bálint Szolcsányi, “Historical, Legal and Political Dimensions of the Kosovo Crisis,” EU Working Papers  (), . Ibid. .

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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 Kingdom 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 Kosovo’s 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 difference 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 regarded as nations entitled to self-determination within a republic, while nationalities, such as Kosovo Albanians, were groups which had an external kin-state; therefore, 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. Szolcsányi, note  above, . Ibid. Jure Vidmar, “International Legal Responses to Kosovo’s Declaration of Independence,” Vanderbilt Journal of Transnational Law  (): . Szolcsányi, note  above, . Andreas Zimmermann, “Yugoslav Territory, United Nations Trusteeship or Sovereign State? Reflections on the Current and Future Legal Status of Kosovo,” Nordic Journal of International Law  (): .


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

However, from the late 1980s, the Serbian authorities started systematically restricting 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 significantly limited the use of Albanian as an official language in Kosovo. For these amendments to become effective, Kosovo’s Parliament had to approve them. To acquire such consent, Serbia deployed police forces and the federal army, which surrounded the Kosovo parliament building until the parliament accepted the constitutional amendments on 23 March 1989.65 In response to the gradual abolition of autonomy, Kosovo’s Parliament exercised an act of internal self-determination and declared the province an independent entity within the Yugoslav Federation, equal to other republics. In response, the Serbian 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 Serbia’s abolition of Kosovo’s autonomy, members of the dissolved parliament drafted a constitution and held a secret referendum on the independence of Kosovo in September 1991; not surprisingly, the majority of Kosovo Albanians supported the independence. Moreover, on 18 October 1991, Kosovo applied for EC recognition. However, Kosovo’s 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 officials and institutions failed to govern Kosovo. The 1992 Yugoslav Constitution made no reference to the formerly autonomous status of Kosovo. In the second half of the 1990s, there were, “uprisings of different 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 intensified reaction from the Yugoslav security forces.70 Hostilities were eventually brought to an end by NATO’s intervention. Moreover, in 1999, NATO forced Serbia to agree to grant selfgovernment to Kosovo. Under Resolution 124471 Yugoslavia was obliged to:

       

Ibid. Ibid. Ibid. . Ibid. Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford: Oxford University Press, ), . Enrico Milano, “Security Council Action in the Balkans: Reviewing the Legality of Kosovo’s Territorial Status,” European Journal of International Law  (): . Ibid. UN Security Council, Resolution  (), UN Doc. S/RES/ ( June ).

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[P]ut an immediate and verifiable end to violence and repression in Kosovo, and begin and complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable, with which the deployment of the international security presence in Kosovo will be synchronized.72

Furthermore, there was an attempt to reach a political solution on Kosovo’s status. The main stumbling block in this matter concerned the degree of protection that could be accorded to a group within a state: thus, Serbia regarded Kosovo Albanians as a minority group entitled to protection of their individual human and minority rights, while Kosovo Albanians maintained that they are a ‘people’ entitled to selfdetermination and statehood.73 The response of the international community did not favour either of these positions. Thus, Resolution 1244 left the future status of Kosovo wide open, and focused on the exercise of self-government by the province within the borders of Serbia. Simultaneously, Serbia’s control over Kosovo was significantly limited, while NATO assumed responsibility for the international civil presence, which inter alia aimed to ensure a meaningful exercise of substantial autonomy and self-government in Kosovo and facilitate a, “political process designed to determine Kosovo’s future status.”74 Having overviewed the principles established in the Badinter Commission’s opinions on uti possidetis juris, self-determination and the rights of minorities, as well as the circumstances leading to Kosovo’s independence, the next part of the chapter turns to the analysis of the ICJ’s Advisory Opinion. 4

External Self-Determination of Minorities? The Advisory Opinion of the ICJ on Kosovo’s Independence

On 8 October 2008, the UN General Assembly requested the ICJ to issue an advisory opinion on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”75 In its Advisory Opinion, eagerly awaited by the international community, the ICJ ruled that Kosovo’s Declaration of Independence did not violate any applicable rule of international law. Does this finding mean that in exceptional circumstances a minority group may externally self-determine? In his dissenting opinion, Judge Koroma strongly criticised the ICJ for setting a very dangerous precedent by accepting the external self-determination of a sub-state unit outside of the context of decolonisation.76 He argued that, under international law, an ethnic, linguistic or religious group does not have the right to break away from a state, by merely expressing its wish to be independent,     

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 Unilateral Declaration of Independence in Respect of Kosovo,  ICJ para  ( July).


Chapter 9, Gulara Guliyeva – Kosovo’s Independence

without the latter’s consent. The Judge lamented that the ICJ did not built its arguments 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 ICJ’s, “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 judge’s criticism suggests that, the Advisory Opinion invalidated the Badinter Commission’s Opinions by establishing that a minority group may externally self-determine. Let us consider the implications of the ICJ’s Advisory Opinion more closely. In dealing with the legality of Kosovo’s 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 matters 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 effects of the recognition of Kosovo by those states which had recognised it as an independent state.82 The ICJ also differentiated the question of the Advisory Opinion from that in the Reference re Secession of Quebec, 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 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.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

        

Reference re. Secession of Quebec []  Supreme Court Reports (Canada). Ibid. . Judge Koroma, Dissenting Opinion, Kosovo Opinion, para . Ibid. Kosovo Opinion, para . Ibid. By  July ,  of the UN’s  countries had recognised Kosovo’s independence. Reference re. Secession of Quebec, note  above. Kosovo Opinion, para. . Discussed below.

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because they concern the right to separate from a state.86 In the ICJ’s 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 ICJ’s reasoning. a

General International Law

The ICJ started its assessment from the premise that international law contains no prohibition of the declaration of independence. Moreover, in the colonial context, the international law of self-determination created a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.88 The Court rejected the arguments of several participants in the proceedings arguing that a prohibition of unilateral declarations of independence was implicit in the principle of territorial integrity. While acknowledging the importance of the principle of territorial integrity, enshrined in Article 2(4) UN Charter and several non-binding international instruments,89 the ICJ maintained that the scope of this principle was confined to the sphere of inter-state relations. As to the Security Council condemnation of some unilateral declarations of independence,90 the ICJ noted that their illegality stemmed not from the unilateral character of these declarations, but rather were connected with the unlawful use of force or violation of jus cogens norms.91 Besides, the Security Council did not take a similar position in the context of Kosovo. Accordingly, there was no general prohibition against unilateral declarations of ind