Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion and Implications For Statehood, Self-Determination and Minority Rights

Kosovo: A Precedent?
Kosovo: A Precedent?
The Declaration of Independence, the Advisory

Opinion and Implications for Statehood, Self-
Determination 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, 1974-
KZ4264.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,
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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
Editors Preface ix
Notes on the Contributors xi
List of Abbreviations xv
Part I Introduction 1
Chapter 1 Kosovo: From Yugoslav Province to Disputed Independence 3

James Summers
Part II Kosovos Unilateral Declaration of Independence 53
Chapter 2 Another Frozen Conflict:

Kosovos Unilateral Declaration of Independence and
International Law 55
Kaiyan H. Kaikobad
Foreword by Colin Warbrick
Chapter 3 From Province to Protectorate to State: Sovereignty Lost,

Sovereignty Gained? 87
Morag Goodwin
Chapter 4 A Contemporary Interpretation of the Principles of

Sovereignty, Territorial Integrity and Self-Determination, and
the Kosovo Conundrum 109
Besfort Rrecaj
Chapter 5 Kosovo: Unilateral Secession and Multilateral State-Making 143

Jure Vidmar
viii Table of Contents
Part III Kosovo and Self-Determination and Minority Rights 179
Chapter 6 Self-Determination and Minority Protection after Kosovo 181

Helen Quane
Chapter 7 Post-World War 2 Exercises of Self-Determination:

Peaceful, Friendly, and Other 213
Elizabeth Chadwick
Chapter 8 The Long Intervention in Kosovo:

A Self-Determination Imperative? 249
Stephen Tierney
Chapter 9 Kosovos Independence:

Re-Examining the Principles Established by the EC Badinter
Commission in Light of the ICJs Advisory Opinion 279
Gulara Guliyeva
Chapter 10 The Kosovo Question and Uti Possidetis: The Potential for a
Negotiated Settlement 303
Stephen Allen And Edward Guntrip
Part IV Implications of Kosovo as a Precedent for Other Regions 343
Chapter 11 Is Kosovo and Metohija Indeed a Unique Case? 345

Miodrag A. Jovanovi
Chapter 12 The Impact of the Kosovo Precedent on

Self-Determination Struggles 375
Sneana Trifunovska
Chapter 13 The Impact of Kosovo:

A Precedent for Secession in Georgia? 395
Vakhtang Vakhtangidze
Chapter 14 The Basque Country: With or Without the Spanish

Constitution, Like or Unlike the Kosovo Precedent? 427
Miryam Rodrguez-Izquierdo Serrano
Index 445
Editors Preface
On 17 February 2008 the authorities in Kosovo (how they are characterised is a mat-
ter of legal debate) issued a Declaration of Independence. In doing so, they not only
added another dimension to a struggle which had been going on for a number of years
about Kosovos status, but also raised important legal questions about the nature of in-
ternational territorial administration, statehood, self-determination and the rights of
minorities. The Declaration did not resolve this disagreement. Many states recognised
Kosovo as an independent state, but most did not. Instead, the issue was referred to
the International Court of Justice for an advisory opinion. On 22 July 2010 the Inter-
national Court delivered its opinion, which has been criticised for what it did not say
(about secession) and what it did (its characterisation of the authors of the declaration).
Nonetheless, the Opinion and the often extensive submissions of interested
states provide considerable insight into a disputed area of international law: rais-
ing debates on authority in an international territorial administration, remedial se-
cession, the dimensions of self-determination and the break-up of states. This dis-
pute continues. The Opinion has not had a dramatic eect on the number of states
recognising Kosovo, which on the 18 November 2010 was 72 UN member states. The
Kosovo issue remains one that may well take years to resolve.
This book draws from papers presented at the conference held at the University of
Lancaster, The Kosovo Precedent: Implications for Statehood, Self-Determination
and Minority Rights on 28 March 2009. My thanks go to all those who attended
and presented and, in particular, to Sigrun Skogly, Steven Wheatley, Gaetano Pen-
tassuglia, David Milman and Ashley Jennings. I would also like to thank Lancaster
University Law School and the Faculty of Arts and Social Sciences at Lancaster Uni-
versity for their support with the conference.
With sadness I must also write that Professor Kaiyan Kaikobad, who presented a
paper, Another Frozen Conict: Kosovos Unilateral Declaration and International
Law, at the Lancaster Conference, passed away in July 2010 after a short illness. His
uncompleted draft has been nalised by Colin Warbrick and my thanks go to Colin
and Kaiyans wife Dhun for their assistance with his chapter. This book is dedicated
to Kaiyans memory.
James Summers
Lancaster 2010
Notes on the Contributors
Dr. STEPHEN ALLEN has been a Lecturer in Law at Brunel University since 2001.
His main research interests include the areas of statehood, territoriality, self-deter-
mination and the rights of indigenous peoples. He has published widely in these
areas, including: Title to Territory in International Law: A Temporal Analysis (2003)
(with Joshua Castellino). More recently, he has published a series of articles on the
rights of the Chagossian people in international law and he acted as a consultant in
the Bancoult litigation in the English Courts. He is joint editor (with Alexandra Xan-
thaki) of Reections on the United Nations Declaration on the Rights of Indigenous
Peoples and International Law (Oxford: Hart Publishing, 2010).
Dr. ELIZABETH CHADWICK is a Reader in Law at Nottingham Law School, Not-

tingham Trent University. In addition tonumerous articles, she is the author of the
monographs: Self-Determination, Terrorism and the International Humanitarian
Law of Armed Conict (The Hague: Martinus Nijho, 1996), Traditional Neutrality
Revisited: Law, Theory, and Case Studies (The Hague: Kluwer 2002) and Self-Deter-
mination 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 specic 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 Eu-
ropean 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 LawInitiative (ABA-CEELI) in Baku.
EDWARD GUNTRIP is a PhD Candidate at Brunel University. His research inter-

ests 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 JOVANOVI received his LL.M and PhD from the Faculty of Law,
University of Belgrade, where he presently works as an ssociate Professor in the
Introduction to Jurisprudence. His academic interest is in the political theory of
multiculturalism, federalism, legal theory of collective rights, as well as in the prob-
lems of the European identity and the political and legal structure of the EU. He has
published more than forty articles and essays in Serbian on legal theory and political
philosophy. He has also published a number of articles and book chapters in inter-
national journals and edited volumes. His internationally published books include
Constitutionalizing Secession in Federalized States: A Procedural Approach (Eleven:
Utrecht, 2007); (with Slobodan Samardi) Federalism and Decentralisation in East-
ern Europe: Between Transition and Secession, (Zurich and Vienna: Institut du F-
dralisme, Fribourg/LIT Verlag, 2007). He has co-edited two books, Sovereignty and
Diversity (with Kristin Henrard), (Utrecht: Eleven, 2008), and Human Rights Today
60 Years of the Universal Declaration (with Ivana Krstic), (Utrecht: Eleven, 2010).
He is currently working on the book Collective Rights A Legal Theory (Cambridge:
Cambridge University Press, forthcoming in 2011).
PROFESSOR KAIYAN HOMI KAIKOBAD who sadly passed away in July 2010 was
Professor of International Law and Deputy Head (Operations) at Brunel University.
He was formerly a legal adviser to the Ministry of State for Legal Aairs of the Gov-
ernment of Bahrain. A member of the Pakistan High Court Bar, he had been con-
sulted by a number of governmental entities and professional societies for advice
on various issues of international law, in particular international disputes and self
determination. He was admitted as Fellow of the Royal Geographical Society (FRGS)
in January 2007. Professor Kaikobad specialised in title to territory, both land and
maritime. His extensive publications included the monographs: The Shatt-al-Arab
Boundary Question: A Legal Reappraisal (Oxford: Oxford University Press, 1988);
The International Court of Justice and Judicial Review: A Study of the Courts Pow-
ers with Respect to Judgments of the ILO and UN Administrative Tribunals (Leiden:
Kluwer, 2000); and Interpretation and Revision of International Boundary Decisions
(Cambridge: Cambridge University Press, 2007).
Dr. HELEN QUANE is a Senior Lecturer at the University of Swansea. Her research
interests include human rights and international law.
Dr. MIRYAM RODRGUEZ-IZQUIERDO SERRANO is Professor of Constitution-

al 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 xiii
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 Univer-
sity, United Kingdom, in February 2009, at the University of Mnster, 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 Pristinas Law Faculty. His PhD thesis is on the Politics of the
Judicial Regimes of Nuclear Energy in the Aspect of International Security. Besfort
nished his LL.M focussed on international law at the State University of New York
Bualo 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 Kosovos 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 Consti-
tutional Law. He was a British Academy Senior Research Fellow 2008-09 and served
as Rapporteur to the International Law Association Committee on Theory and In-
ternational Law 2002-05. He has published six books including Constitutional Law
and National Pluralism (Oxford: Oxford University Press 2004).
Dr. SNEANA 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 Dissolu-
tion (Dordrecht: Martinus Nijho, 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 Nijho, 1999); Minori-
ties in Europe Croatia, Estonia and Slovakia (The Hague: T. M. C. Asser, 1999); Mi-
nority 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 Coop-
eration 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
xiv Notes of the Contributors
NGO Article 42 of the Constitution, which was the rst Georgian organisation to
successfully support two complaints against Georgia in the European Court of Hu-
man Rights. He has been involved in applications regarding human rights violations
in the breakaway regions of Georgia and has assisted with the preparation of cases
led with the Court arising from the conict in South Ossetia. Since January 2009
he has been engaged in doctoral studies at the University of Essex on the impact of
international involvement in revising the concept of self-determination.
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). Jures 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 democratisa-
tion 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 interna-
tional lawyer, with a particular interest in statehood and recognition. His article,
Kosovo: the Declaration of Independence is published in International and Com-
parative Law Quarterly 57 (2008): 675.
List of Abbreviations
CR Compte Rendu (Verbatim Records) (ICJ)

EC European Community
ETA Euskadi Ta Askatasuna
EULEX European Union Rule of Law Mission in Kosovo
FCNM Framework Convention for the Protection of National Minori-
ties
FRY Federal Republic of Yugoslavia (Serbia and Montenegro)
GA Res. General Assembly Resolution
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICO International Civilian Oce
ICR International Civilian Representative
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the former Yugoslavia
IDP Internally Displaced Person
IIC International Independent Commission on Kosovo
ILC International Law Commission
IP Ibarretxe Plan
ISG International Steering Group
KFOR Kosovo Force
KPC Kosovo Protection Corps
KPS Kosovo Police Service
LDK Democratic League of Kosova
NAC North Atlantic Council
NATO North Atlantic Treaty Organisation
NGO Non-Governmental Organisation
OSCE Organisation for Security and Cooperation in Europe
PDK Democratic Party of Kosovo
PNV Basque Nationalist Party
PP Popular Party
PSOE Spanish Socialist Party
SC Res. Security Council Resolution
xvi List of Abbreviations
SFRY Socialist Federal Republic of Yugoslavia

SOE Socially-Owned Enterprise
SRSG Special Representative of the Secretary-General
SUSM State Union of Serbia and Montenegro
TRNC Turkish Republic of Northern Cyprus
UCK Ushtria Clirimtare e Kosoves (Kosovo Liberation Army)
UDI Unilateral Declaration of Independence
UNCLOS United Nations Convention on the Law of the Sea 1982
UNHCR United Nations High Commissioner for Refugees
UNMIK United Nations Mission in Kosovo.
UNOSEK United Nations Oce of the Special Envoy for Kosovo
UNPROFOR United Nations Protection Force
UNTAES United Nations Transitional Authority for Eastern Slavonia, Ba-
ranja and Western Sirmium
UNTAET United Nations Transitional Administration in East Timor
I.
Introduction
Ni
Distribution of
ethnic Albanians
Serbia
Leposavi
Iba
r
Iba
r
Monte- Zve an
Zubin Mitrovica
negro Potok
Vu itrn
Sitn
Pristina
Pe
ica
Kosovo

Gnjilane
Orahovac
akovica
Pre evo
Gjokova
Prizren
!
Kumanovo

Albania
Tetovo

Skopje
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. For-
merly an autonomous province of Serbia in the Socialist Federation of Yugoslavia,
Kosovo played a central role in the federations break up in 1991. In 1999 it was the
subject of military intervention by NATO which could be characterised alternatively
as illegal or just, or indeed both. From 1999 it was administered by the United
Nations, formally within the sovereignty of the rump Yugoslavia of Serbia and Mon-
tenegro. However, following fundamental disagreement between UN members on
its future, it declared independence on 17 February 2008. The Declaration split UN
members. Currently, over a third of member states (72) consider Kosovo the worlds
newest nation, but about two-thirds dont. The Declaration was also the subject of
an Advisory Opinion by the International Court of Justice, requested by Serbia, and
delivered on 22 July 2010. The Court found that it did not to violate international law.
Nonetheless, the opinion has not, so far, led to a signicant shift in the position of
states.
Kosovo is a small landlocked region of 10,887 sq. km. The bulk of the territory
is a relatively at elevated plain, bordered by mountains, the highest of which rises
to 2656 m. Serbia lies to the north and east; Albania, which has close ethnic ties
to the majority of the population, to the south-west; and Macedonia and Monte-
negro, which have signicant Albanian minorities, lie to the south-east and west,
respectively. Kosovos present population is 2.1 million (2006). Its ethnic compo-
sition has often shifted with its violent history. Today it is predominantly ethnic
Albanian (92) and Muslim. Serbs form the largest minority (5.3), with smaller
populations of Roma (1.1), Turks (0.4) and other communities (1.2), including
This is the name used in English. In Albanian it is known as Kosova or Kosov. Serbs
refer to the territory as Kosovo and Metohija ( ). Kosovo derives
from Serbian. Nonetheless, this is the internationally used designation and it is used
here for the sake of clarity and not to endorse any political position. The same applies to
place names in Kosovo.
James Summers. (ed.), Kosovo: A Precedent?
Koninklijke Brill nv. Printed in The Netherlands. isbn 978 9004 17599 0. pp. 3-51.
4 I. Introduction
Bosniacs, Gorani, Askalis and Egyptians. Prior to the break up of Yugoslavia, its
population was 1.58 million (1981), of whom 77.4 were Albanians and 13.2 Serbs.2
The Albanian identity itself, which is a primarily linguistic concept of nationhood, is
not homogeneous and contains a signicant dialectal dierence between the Gheg
dialect spoken in Kosovo (and northern Albania) and Tosk spoken in Albania and
the basis for literary Albanian.3
Nonetheless, a dry description of Kosovos geography and ethnography does not
explain the passions which have shaped Kosovos recent history. The depth of those
feelings is vividly illustrated by this account from the Czech politician Thomas Ma-
saryk in 1915:
During the last war against the Turks I happened to be in Serbia, and a Serbian ocer
told me his experience on the battleeld. When at the head of his regiment of peasant
soldiers he reached the plain of Kosovo, the famous Field of the Blackbirds, a deathlike
silence seized the whole detachment; men and ocers, without any command, uncovered
their heads, crossed themselves, and each of them tried to tread softly, so as not to disturb
the eternal sleep of their heroic ancestors. (Here my friend, quite lost in the remembrance
of that great experience, unconsciously imitated their gait, and his voice fell to a whisper
as he recalled the silence of his soldiers). Many of the weatherbeaten faces were bedewed
with unconscious tears, as was my friends face while he spoke.4
This would not be the last time that tears were shed over Kosovo. The territory
is central to two competing ideas of nationhood. In its written statement to the
ICJ, Serbia characterised Kosovo as, part of the people of Serbia, with most of
its population forming an ethnically distinct minority within Serbia.5 Conversely,
the Kosovo authorities considered Kosovars a distinct people based on their ethnic
characteristics.6
Serbs look to Kosovo as central to their history: a cradle of their culture, reected
in monasteries and churches, and the battleeld on which in 1389, their history took
a decisive turn with defeat at the hands of the Ottomans and reduction to a vas-
Statistical Oce of Kosovo, Demographic Changes of the Kosovo Population -

(Pristina: Statistical Oce of Kosovo, ), . See also Written Contribution of Kosovo,
April , para. ..
Stark Draper, The Conceptualization of an Albanian Nation, Ethnic and Racial Stud-
ies (): , .
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 Interna-
tional Community: A Legal Assessment, ed. Christian Tomuschat (The Hague: Kluwer,
), -.
Chapter I, James Summers Kosovo: From Yugoslav Province to Disputed Independence 5
sal status. Nonetheless, Kosovos place in Serbias 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 ma-
jority in Kosovo, at least, since the mid-nineteenth century, though the process by
which this majority was formed has been ercely 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 ows 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 Miloevi, 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 recongura-
tion of the Kingdom of Yugoslavia, a state set up in 1918 under Serbias ruling dy-
nasty, and originally known (until 1929) as the Kingdom of the Serbs, Croats and Slo-
venes. 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 Yugosla-
via. 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 Bal-
kans and, correspondingly, the Illyrian theory is favoured by Albanians by giving them
a long historical connection to the region. The connections to these earlier populations,
though, remain obscure. See ibid. -.
See Zhidas Daskalovski, Towards an Integral Theory of Nationalism? Case-Study Kos-
ovo, International Journal of Minority and Group Rights (): -.
Misha Glenny, The Fall of Yugoslavia: The Third Balkan War (London: Penguin Books,
), ; Noel Malcolm, Bosnia: A Short History (London: MacMillan, ), ; Tim
Judah, Kosovo: What Everyone Needs to Know (Oxford: Oxford University Press, ),
-; Vickers, note above, -.
6 I. Introduction
corresponded with ve nations: Slovenes, Serbs, Croats, Montenegrins and Mace-

donians: 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 Yugosla-
via and how the territorial unit14 and its population15 are characterised, has been
divisive as they are seen to relate to the legitimacy of Kosovos subsequent inde-
pendence 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 Voivodinas position as an Autonomous Province, with its own leg-
islature and supreme court. In 1963 Kosovo-Metohija was upgraded to an Autono-
mous Province. In 1968 Metohija, a Serb designation, was dropped from its name,
and it gained its own constitution, legislative and judicial authority and representa-
tion 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 eective 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. Writ-
ten 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. Writ-
ten Statement of Russia, April , para. .
Vickers, note above, -, , -.
Ibid. -; Judah, note above, .
Vickers, note above, .
Albanians were not one of the nations of Yugoslavia. Initially they were classed
as a national minority, but were subsequently reclassied in 1963 as a nationality,
along with Hungarians.19 Nationalities did not have a right to self-determination or
their own republics,20 though this distinction became blurred in the 1974 Constitu-
tion, which repeatedly referred to nations and nationalities having equal rights. The
theory behind the nation/nationality distinction was that Albanians and Hungar-
ians already had their own state outside Yugoslavia. However, politically it would
have been unacceptable to carve further republics out of Serbia, which had already
been reduced by the creation of the Macedonian Republic. Nonetheless, this distinc-
tion and the failure to gain a republic was seen by Albanians as discrimination, espe-
cially as they outnumbered some South Slav nations which had their own republics,
such as the Montenegrins and Macedonians.21
3 The Break Up of Yugoslavia

Despite the federal structure of Yugoslavia being something of a facade, inecien-
cies in the communist system allowed local apparatchiks to build up considerable
authority.22 The Yugoslav republics were eectively 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 en-
tity 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 rgime of Alexander Rankovi, the Serb Vice President of Yugoslavia,
whose secret police created a climate of fear amongst Serbias minorities. However,
in 1966, following a power struggle with Tito, Rankovi and his security apparatus
were purged.23 This coincided with a general devolution of power from the centre,
as Tito attempting to reform Yugoslavias dysfunctional economy, sought to bypass
the conservative federal bureaucracy by transferring more power to reformist re-
publican leaders.24 Through the late 1960s Kosovo gained more powers and Alba-
nian culture greater self-expression through education and the university. Ties be-
tween Yugoslavia and Eastern Europes 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
Conict: The Case of Serbia, in Nationalism and Ethnic Conict, eds. Michael E. Brown
et al. (Cambridge: MIT Press, ), -.
8 I. Introduction
the door to greater contact between Kosovos Albanians and Albania, with the lat-
ter having more cultural weight. Kosovos Albanian became standardised around
the Tosk dialect used in Albania. While the Communist Party in Kosovo remained
almost exclusively Serb and Montenegrin, the provinces expanding public institu-
tions were increasingly staed with Albanians. Previously dominant minorities now
began to complain about discrimination. Changing demographics driven by the Al-
banian birth rate, the highest in Europe, led to the increasing Albanianisation of
Kosovo, which in turn, attracted Albanian migrants from elsewhere in Yugoslavia
accelerating the process.25
Ocials in Kosovo, like those in the republics, pressed for greater powers. In the
case of Kosovo, the key demand was to be elevated to a republic. Nationalist dis-
content also ared in the province, with the university providing a focal point for
mobilisation. In 1968 student riots led to wider demonstrations in Kosovo and Mace-
donia, demanding a republic and the unication of Albanians within Yugoslavia.26
Nationalist unrest also occurred in the republics, especially Croatia in 1971, and Tito
responded with a purge. Nonetheless, the republics and autonomies continued to
build up powers,27 with Kosovos status further advancing with the 1974 Constitu-
tion, as well as the Albanian character of its administration. Minorities, in turn, felt
persecuted and many left the province.28
From the 1970s Tito presided over a state, whose weakened centre depended on
his own personal authority. In 1980 he died. With his death, central authority de-
volved to an eight member collective presidency, made up equally of representa-
tives of the six republics and two autonomies29 (a Kosovar was President from May
1986-May 1987).30 The system was supposed to hold the country together with its
multinational representation, but it was also weak, complex and institutionalised the
power of the republics and autonomies. The stage was set for a struggle between the
republics in which Kosovo was to play a central role.
Economically, Kosovo was the poorest region in Yugoslavia and the gap was wid-
ening. While it had signicant natural resources coal, chrome, lead and zinc
industrial development in the province had been focussed on their extraction for
industries in the republics rather than building its own industrial base. Growth in
the province was consumed by a high birth rate. The population remained largely
rural and poorly educated, with graduates facing dicult prospects. The unemploy-
ment rate was the highest in the Yugoslavia.31 In March 1981 student protests over
Vickers, note above, -, .

Ibid. , .
Ramet, note above, ; Christopher Bennett, Yugoslavias 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 Yugoslavias Disintegration (Oxford: Oxford
University Press, ), .
Vickers, note above, , , -; Malcolm, note above, .
conditions at Pristina University escalated into riots, targeting Serbs, and demon-
strations in Kosovos main towns demanding a republic and Albanian unication.
In response, the army was sent to the province in a heavy-handed crackdown, which
left hundreds of Albanians dead. This left a legacy of radicalisation among some
Albanians and a heavy security presence in the province.32
The tensions in Kosovo provided rallying point for Serbian nationalism and this
was seized on by conservatives within the Serbian Communist Party, lead by Slo-
bodan Miloevi. Miloevi famously visited Kosovo in 1987 and told Serbs clash-
ing with the police: No one should dare to beat you.33 Using the Kosovo issue he
secured the leadership of the Serbian Communist Party in 1988. He then sought to
create a Serb-led centralised Yugoslavia, based on a Memorandum, drawn up by
academics in 1986 for Serb hegemony either through a recentralised Serb-dominated
state or a greater Serbia carved from the other republics.34
At the end of 1987 the Communist Party in Kosovo was purged and the local
police replaced, followed by the removal of the party leadership in Voivodina in Oc-
tober 1988 and a coup in Montenegro in January 1989. In March 1989 Serbia re-
established direct control over the autonomous provinces. Kosovos Assembly, sur-
rounded by police and tanks, endorsed the eective removal of its self-government.35
Legislation could now only be passed in Kosovo with prior approval from the Ser-
bian National Assembly and the province ocially reverted to its former title of
Kosovo and Metohija.36 With control of two republics and two autonomies, and
thus four out of the eight seats in the collective presidency,37 Miloevi had gone a
long way towards the rst option in the Memorandum. On 28 June 1989, when ad-
dressing a huge crowd in Kosovo, he warned of battles ahead, possibly armed ones, it
was a threat that the leaders of the other republics took very seriously.
Miloevis attempt to create a centralised Serb-controlled state met with resis-
tance from the other republics, in particular, Slovenia, which pressed for Yugoslavia
to be restructured as a looser, more exible federation.38 Conict between the two
caused the collapse of the Yugoslav Communist Party in January 1990, and following
free elections in April the gap widened as nationalists took power in Slovenia and
Croatia.39 Slovenia and Croatia pressed for a confederal Yugoslavia, while Miloevi
threatened that if this were to happen Serbias borders with the other republics
would be an open question. This was not an idle threat. Serbian authorities actively
Vickers, note above, -, ; Judah, note above, -.

Judah, note above, .
Meier, note above, ; Malcolm, 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, .
Bennett, note above, .
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 maintain-
ing the federation, as did Bosnia, which by geography and demography risked being
torn apart in a conict between Serbia and Croatia.41
In Kosovo the goals of the Albanian leadership were to maintain autonomy and
achieve the status of a republic. Correspondingly, on 2 July Albanian members of
Kosovos Assembly declared Kosovo a republic outside Serbia.42 In response, Serbia
on 5 July dissolved the Kosovos Assembly and Executive.43
In December Slovenia strengthened its position in negotiations over the future
of Yugoslavia by securing overwhelming support for independence in a referendum.
The talks, however, remained deadlocked. Explicit international support for Yugo-
slavias territorial integrity emboldened Miloevi44 and negotiations collapsed in
May 1991 when Serbia and Montenegro refused to accept Stipe Mesi, a Croat, as
Yugoslav President.45 Slovenia moved for separation, joined by Croatia, declaring
their independence on 25 June.46 Macedonia and Bosnia, faced with the prospect of
remaining in a Serb-dominated rump, followed later in the year. Kosovo Albanians
also made a declaration of independence on 21 September, following an unocial
referendum in which independence was endorsed by voters by 99.87 on an 87.01
turnout.47 The Republic of Kosovo was recognised as a state by Albania on 22 Octo-
ber 1991, the only country to do so.48 However, in terms of statehood, Kosovo notably
lacked a government in control of its territory. While some republics, like Croatia,
and especially Bosnia, struggled to exercise authority in large parts of their territory,
the parallel institutions of the Kosovo Albanians could not seriously challenge Yu-
goslavias control over their territory.
Slovenia and Croatia did not gain international recognition. Instead, on the 27
August the EC (EU) organised a Peace Conference on Yugoslavia which aimed to
include representatives of the EC and its member states, the Yugoslav Federal Presi-
dency and government, and the presidents of the six republics, but not representa-
tives from the autonomies. Additionally, the EC established an arbitration commis-
sion, composed of the presidents of constitutional courts in France, Germany, Italy,

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, .
Marc Weller, The International Response to the Dissolution of the Socialist Federal
Republic of Yugoslavia, American Journal of International Law (): .
See Sneana Trifunovska, Yugoslavia through Documents: From its Creation to its Dis-
solution (Dordrecht: Martinus Nijho, ), , .
Central Board of Kosova for the Conduct of the Referendum, Result, October ,
in Weller, note above, .
Radan, note above, ; Vickers, note above, .
Spain and Belgium, dubbed the Badinter Commission after its president Robert
Badinter. The Commission was intended to deliver non-binding opinions on aspects
of the Yugoslav crisis.49 The republics were invited to submit requests for recogni-
tion, which Slovenia, Croatia, Bosnia-Herzegovina and Macedonia did.50 The rump
union of Serbia and Montenegro, known as the Federal Republic of Yugoslavia (FRY)
did not, considering itself to be the successor to the SFRY. On 22 December the
Kosovo leader Ibrahim Rugova wrote to the chairman of the peace conference to
request recognition for Kosovo as an independent state but this was refused.51
In the meantime, the Soviet Union dissolved on 8 December52 and following this,
on 16 December EC states produced a Declaration on Guidelines on the Recognition
on New States. This spelled out basic principles for the recognition of states based on
the Helsinki Final Act 1975 and Paris Charter 1990. It recognised self-determination,
but also emphasised the inviolability of existing frontiers.53 It also conrmed a policy
shift policy from seeking a political solution that maintained the territorial integrity
of Yugoslavia to a managed dissolution.54
The Badinter Commission in Opinion No. 1 characterised the break-up of Yugo-
slavia as a federal dissolution, in which the state had dissolved into its component
federal units.55 This characterisation might have been accurate for the Soviet Union,
where the principal federal units had agreed to terminate the federation, but in Yu-
goslavia, federal units had unilaterally declared independence and were forcibly re-
sisted by federal institutions: a process much more like secession.56 Nonetheless, the
federal dissolution designation had two important consequences. First, there was no
successor to Yugoslavia (SFRY). All the new states had to apply for recognition, in-
cluding the Federal Republic of Yugoslavia (FRY). This allowed greater international
leverage, ensuring that the new states complied with international obligations before
Sonia Lucarelli, Europe and the Breakup of Yugoslavia: A Political Failure in Search of a
Scholarly Explanation (The Hague: Kluwer, ), -.
See Dominic McGoldrick, Yugoslavia The Response of the International Community
and of International Law, Current Legal Problems (): -; Alain Pellet, The
Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Deter-
mination of Peoples, European Journal of International Law (): -.
Letter from Dr. Rugova to Lord Carrington, Peace Conference on Yugoslavia, De-
cember , in Weller, note above, ; Vickers, note above, .
Minsk Declaration, December , International Legal Materials (): -.
Declaration on the Guidelines on the Recognition of New States in Eastern Europe and
in the Soviet Union, International Legal Materials (): -.
Radan, note above, .
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-
national Legal Materials (): , para. . See Martyn Rady, Self-Determination
and the Dissolution of Yugoslavia, Ethnic and Racial Studies (): .
Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union,
European Journal of International Law (): ; Yehuda Z. Blum, UN Membership
of the New Yugoslavia: Continuity or Break? American Journal of International Law
(): .
12 I. Introduction
they could gain recognition. Second, it set clear limits on the political fragmentation
of Yugoslavia, devolving an entitlement to statehood to the republics but not beyond
that.
This republic-centred approach was strengthened by the application of uti pos-
sidetis, a principle which upheld established administrative frontiers upon indepen-
dence, and had been previously used in decolonisation in Latin America and Afri-
ca.57 However, this was in relation to colonial frontiers. The extension of the principle
to the dissolution of a federal state was somewhat novel. The Commission justied
this extension from the nding by the ICJ in the Burkina Faso/Mali Frontier Dispute
that uti possidetis was: a general principle, which is logically connected with the
phenomenon of obtaining independence, wherever it occurs.58
This innovative use of uti possidetis was not without controversy. The Interna-
tional Court in Burkina Faso/Mali had only referred to the principle in the con-
text of colonisation.59 The Commission also drew from other instruments, which
contained, a well-established principle of international law [that] the alteration of
existing frontiers or boundaries is incapable of producing any legal eect.60 In this
regard it cited the Helsinki Final Act 1975 and the Declaration on Friendly Relations,
GA Res. 2625 (XXV) 1970. Neither of these instruments specically referred to uti
possidetis, though they both contained the principle of the territorial integrity of
states, and in the Final Act, the inviolability of frontiers.61 Nonetheless, while these
principles had similarities to uti possidetis, they also performed a dierent function
in international law: preserving existing states within their borders. The signicance
of territorial integrity to Yugoslavia was to prevent the initial dissolution, rather than
to prescribe its form. The Commission also referred to article 5 of the Yugoslav Con-
stitution, which stipulated that the territories and boundaries of the republics could
only be altered with their consent. But, this applied within Yugoslavia as an existing
state.
This legal defence of the borders of the republics, notably clashed with a key
principle behind independence: the self-determination of peoples. In the Yugoslav
OAU Resolution on Border Disputes, Cairo Meeting - July . Article III, Organi-
sation of African Unity Charter . See also Article (b), African Union, Constitutive
Act .
national Legal Materials (): . Citing Burkina Faso/Mali Frontier Dispute.
[T]he principle of the intangibility of frontiers inherited from colonization is not
a special rule which pertains solely to one specic system of international law. It is a
general principle, which is logically connected with the phenomenon of obtaining in-
dependence, wherever it occurs. Its obvious purpose is to prevent fratricidal struggles
provoked by the challenging of frontiers following the withdrawal of the administering
power. Frontier Dispute (Burkina Faso v. Mali), ICJ , para. ( December).
national Legal Materials (): .
See Principles () and (), () and () and (d), GA Res. (XXV), UN Doc. A/
RES/ ( October ); Principles I, II, III, IV and VIII, Helsinki Final Act ,
International Legal Materials (): -.
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 self-
determination.63 Nonetheless, minority rights were applicable and found to have a
jus cogens character.64 The rights of populations within states also extended to au-
tonomy. In this regard, the Commission found that Croatia did not fully meet the
requirements for recognition by not including a provision for the special status of
minorities.65
However, a republic-based federal dissolution settlement required more than a
non-binding advisory commission to support it. The boundaries of the republics
were challenged by Serbs in Croatia, Serbs and Croats in Bosnia-Herzegovina and
ethnic Albanians in Kosovo. There was, though, a marked dierence between the
Kosovo independence movement and the Serb and Croat movements which were
supported militarily by the governments of those countries. Serb secessionists in
Croatia and Bosnia-Herzegovina, supported by the Serbian government and the re-
mains of the Federal Army, proclaimed independence as the Republic of Krajina and
the Republika Srpska, respectively. Better armed than the Croatian and Bosnian gov-
ernments, the Serb secessionists conquered territory in both republics, reinforced by
a process which became known as ethnic cleansing.
International involvement was initially restricted to an arms embargo on Yugosla-
via.66 In February 1992, a UN peacekeeping mission, UNPROFOR67 was established,68

national Legal Materials (): , para. .
national Legal Materials (): , para. ; Opinion No. , ibid. , para. .
national Legal Materials (): -, paras. -.
SC Res. , UN Doc. S/RES/ ( September ).
United Nations Protection Force.
SC Res. , UN Doc. S/RES/ ( February ).
14 I. Introduction
deployed rst in Croatia, and then, as the conict 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 bru-
tally 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, East-
ern 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-Herze-
govina as a state within its established frontiers, upholding the federal dissolution
model, at least formally, but with substantial powers held by two ethnically-dened
Entities: the Muslim-Croat Federation and the Republika Srpska.75
The Kosovo secessionist movement initially avoided the same violence that en-
gulfed Croatia and Bosnia. Ethnic Albanians, proclaimed and established a de facto
republic, consisting of parallel institutions, including health, education, and the me-
dia, 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 Administra-
tion, American Journal of International Law (): -; Carsten Stahn, Inter-
national Territorial Administration in the Former Yugoslavia: Origins, Developments
and Challenges Ahead, Zeitschrift fr Auslndisches entliches Recht und Vlker-
recht (): .
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
(): .
Its leader, Ibrahim Rugova, a literary history expert, became the President of the
Republic of Kosovo.77
The parallel institutions were intended to advance Kosovo independence, but also
were a response to discriminatory policies by the Serbian government. Most Alba-
nians in any form of state employment had been dismissed, including doctors and
other health workers and school teachers. Albanians had restrictions on ownership
of property and were subject to arbitrary arrest. Serbianisation was introduced:
with the Albanian media suppressed, libraries emptied, museums closed and streets
renamed to resonate with Serbian nationalism. School teaching was in Serbo-Croat,
with Albanian literature and history virtually eliminated from the curriculum, and
Albanians barred from Pristina University. The authorities also sought to shift the
demographic balance, by not only creating conditions to make Albanians leave, but
also by settling Serb refugees from Croatia, and oering land to encourage migra-
tion. Nonetheless, few Serbs were interested in becoming part of a minority in this
impoverished region.78
The strategy of Rugova and the LDK was intended to prevent a conict which
would give a pretext for ethnic cleansing; to delegitimise Serbias rule by non-
participation and establish the Republic as an eective authority; and to bring in
international involvement.79 The strategy was initially successful, earning interna-
tional praise, and after attempts to destroy the Republic a degree of toleration from
Miloevi.80 The attraction was that Kosovo was contained. But this was as a miser-
able and unsustainable status quo not a political solution. Meanwhile, Rugovas suc-
cess in preventing a violent revolt, denied him the international intervention that he
hoped for. The policy of non-participation also helped maintain Miloevi in power,
depriving his opponents of a crucial block of votes in Yugoslav elections. Nor was
this unintended. Albanian politicians calculated that their independence agenda
needed a clear oppressor to struggle against.81
Other more radical Albanian organisations existed, notably the Kosovo Libera-
tion Army (KLA), or Ushtria Clirimtare e Kosoves (UCK). Formed in the early 1990s,
it was a mix of the descendents of rightist resistance ghters in World War Two and
left-wing Pristina University graduates cultivated by Albania.82 The KLA carried out
Malcolm, note above, -; Judah, note above, ; Vickers, note above, -

.
Richard Caplan, International Diplomacy and the Crisis in Kosovo, International Af-
fairs (): ; 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, Kosovos Next Masters? Foreign Aairs : (): -.
16 I. Introduction
its rst armed attack in May 1993, killing two Serb police ocers, but for a long time
remained a small organisation without mass support.83
The Dayton Accords 199584 are seen as a watershed for nationalism in Kosovo.85
The Accords provided for a settlement for the conict in Bosnia-Herzegovina and
recognition of Yugoslavia (FRY) with Kosovo within its territory. The Security Coun-
cil subsequently lifted sanctions on Yugoslavia,86 though outer wall sanctions, on
membership in international organisations and assistance from international nan-
cial institutions, were maintained until it addressed a number of issues, including
the human rights situation in Kosovo.87 Nonetheless, a settlement for Kosovo was
deliberately excluded in the negotiations because of concerns of adding a further
layer of complexity and of alienating Miloevi, who was needed to pressure the
Bosnian Serb leadership.88 The lesson that Kosovo Albanians drew from Dayton was
stark. Non-violence had allowed states to ignore them, while the violent secession of
Republika Srpska had established, if not an independent state, then, at least, a highly
autonomous entity, enjoying self-government that they were denied. While the West
had ended the Bosnian conict by engagement with Miloevi, the eect in Kosovo
was to shift support to the radicals, laying the foundations for the next Balkan con-
ict. In spring 1997 the weapons for a mass insurrection became available when
the Albanian government collapsed in the wake of a nancial crisis. Government
armouries were looted, ooding the region with hundreds of thousands of illegal
weapons.89
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 ar-
eas of Kosovo came under nominal KLA control. The international response was co-
ordinated through the Security Council and the Contact Group, a diplomatic group-
ing 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

See Dominic McGoldrick, From Yugoslavia to Bosnia: Accommodating National Iden-
tity in National and International Law, International Journal on Minority and Group
Rights (): -.
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 Conict
and International Intervention (Armonk: M. E. Sharpe, ), -.
Council passed Resolution 1160, which condemned the KLA as terrorists and called
on the Yugoslav government to enter into a dialogue with the Albanian leadership
to secure a political solution. The Council specied that, without prejudicing the
outcome, this should be based on a substantially greater autonomy and meaningful
self-administration for Kosovo within the territorial integrity of Yugoslavia.91
In July Serbian forces launched a counterattack and swiftly drove back the KLA,
and with them the Albanian population. By 3 August an estimated 200,000 ethnic
Albanians had been displaced.92 United States with the Contact Group began a pro-
cess of indirect negotiations under Chris Hill, the US Ambassador to Macedonia, in
which proposals for autonomy were presented to both sides. Security Council reso-
lutions called on the parties to engage in these negotiations.93 However, the process
had stalled by December and on Christmas Eve, Yugoslav forces were engaged in
another oensive against Albanians. In January the bodies of 45 individuals, appar-
ently executed by Serbian security forces were discovered in what became known as
the Racak Massacre.94
In January 1999, representatives of the Contact Group called for negotiations. On
29 January they summoned the two sides to negotiations in Rambouillet, a castle in
France. The content of the negotiations was to be shaped by non-negotiable prin-
ciples, which would determine the parameters of the settlement. These included: an
interim agreement, with a nal settlement after three years; no unilateral changes to
the interim status; international involvement; respect for the territorial integrity of
the FRY and neighbouring countries. The people of Kosovo were to be self-governed
by democratically accountable Kosovo institutions. Statements by NATO indicated
that force could be used to enforce a settlement. On 30 January the North Atlantic
Council called on both parties to accept the Rambouillet summons, to complete
negotiations on an interim settlement, to observe a ceasere, to comply with their
commitments to NATO, and to end the disproportionate use of force. It warned
that if these steps were not taken, the NATO Secretary-General could authorise air
strikes against the FRY.95
The Rambouillet talks took place from 6-23 February, with the assistance of three
negotiators from the Contact Group, representing the US, EU and Russia. A draft
framework agreement was presented to the parties. who had the opportunity to
propose modications, within the Contact Groups non-negotiable principles. The
negotiations produced a text, but neither party signed it. The Kosovo delegation indi-
cated acceptance subject to consultations with domestic authorities, while the Yugo-
slav delegation considered that the text required further negotiation. Follow-on talks
took place in Paris on 15-18 March. The Kosovo delegation accepted the draft, while
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 Aairs ():
-.
Ibid. -.
18 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 Yugo-
slavia (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 aairs, customs, federal taxa-
tion 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 nal 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 partys eorts towards the implementation
of the agreement, and the Helsinki Final Act.101 This combination of elements did
not specically rule out any particular outcome, but it was orientated towards con-
tinuing 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 consider-
ation. Nonetheless, the Accords rmly located Kosovos 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 justied by NATO as, necessary to avert
a humanitarian catastrophe, due to Yugoslavias refusal to accept the Rambouillet
Accords, failure to fully observe agreed limits on its army and police, and excessive
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 ), .
See Marc Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Ox-
ford University Press, ), -.
Judah, note above, , .
and disproportionate use of force in Kosovo.104 However, this action signicantly

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 bomb-
ing Serbian forces intensied 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 justied. 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 Le-
gitimation 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, NATOs Campaign in Kosovo, American Journal of
International Law (): -; Jonathan I. Charney, Anticipatory Humanitar-
ian Intervention in Kosovo, American Journal of International Law (): -;
Christine M. Chinkin, Kosovo: A Good or Bad War? American Journal of Interna-
tional 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, Kosovos 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 Univer-
sity Press, ), -, -; Dino Kritsiotis, The Kosovo Crisis and NATOs Ap-
plication 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 Conict and Security Law (): -; Peter
Hilpold, Humanitarian Intervention: Is There a Need for a Legal Reappraisal? Euro-
pean Journal of International Law (): -; Martti Koskenniemi, The Lady
Doth Protest too Much Kosovo, and the Turn to Ethics in International Law, Mod-
ern 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, Self-
Determination 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 Kosovos Declaration of Independence,
Vanderbilt Journal of Transnational Law (): -; Peter Hilpold, The Kosovo
Case and International Law: Looking for Applicable Theories, Chinese Journal of Inter-
national Law (): -.
See Eric Herring, From Rambouillet to the Kosovo Accords: NATOs War against Ser-
bia and Its Aftermath, International Journal of Human Rights (): -.
20 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 owed directly from Yugoslavias non-com-
pliance with SC Res. 1203 (1998).108 Slovenia argued for a doctrine of extreme neces-
sity, as it claimed had been the case in Bangladesh in 1971.109
Ironically, the state that intervened in Bangladesh in 1971, India, in a total reversal
of its position at that time, proved to be one of the ercest critics of NATO: we have
been told that the attacks are meant to prevent violations of human rights. Even
if that were so, it does not justify unprovoked military aggression. Two wrongs do
not make a right.110 Both Russia and China explicitly condemned the use of force
as a violation of the UN Charter111 and further criticism in the Council came from
Namibia,112 as well as by non-members, Belarus and Cuba.113
However, most states comments fell into a grey area in which the intervention
could be simultaneously illegal and necessary. Malaysia called it regrettable but nec-
essary.114 Argentina again regretted the action but considered that it was the respon-
sibility of Belgrade.115 Brazil found it set a problematic precedent, but fully identi-
ed with the moral considerations invoked.116 Gabon said it was understandable.117
Gambia put weight on the exigencies of the situation.118 There was consideration of
a balance between principles of respect for state sovereignty and human rights.119
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 de-
nial of humanity resulting in threats to the peace. UN Doc. S/PV. ( June ),
; Netherlands: The Charter, to be sure, is much more specic on respect for sov-
ereignty 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 ), .
There was also an acute awareness of the recent history of the genocide in Bosnia,
which the UN failed to prevent, and appeared to be happening again. The crisis was
taking place, so soon after Bosnia,120 and its lessons had not been learned.121 De-
spite unease amongst states, an opportunity to condemn the NATO intervention as
violation of the UN Charter, in a draft by Russia and Belarus, co-sponsored by India,
was decisively voted down by twelve votes to three.122
6 Security Council Resolution 1244

The Kosovo conict 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, follow-
ing 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 NATOs intervention against Yugoslavia. But, it did authorise
an, international security presence,127 with substantial NATO participation,128 al-
lowing their forces to enter Kosovo as KFOR under a UN umbrella. It also provided
for a unied 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 Alba-
nian 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 Kosovos borders; provide a secure environment for the re-
turn 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. ; Or-
ganization 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 Uni-
versity Press, ), -.
KFOR-Yugoslavia and Serbia, Military Technical Agreement, June . Accessed
September . http://www.nato.int/kosovo/docu/aa.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).
22 I. Introduction
be taken over by the civil presence.131 It also charged with ensuring the demilitarisa-
tion of the KLA, and preventing the return of Yugoslav forces,132 except in certain
narrow, specied circumstances.133
Alongside the security presence, the resolution provided for a civilian administra-
tion, the United Nations Mission in Kosovo, or UNMIK.134 UNMIKs responsibility
was to establish the interim political framework for Kosovo which allowed substan-
tial autonomy and self-government.135 Addressing the humanitarian crisis in Kosovo,
it was to: support the coordination of humanitarian and disaster relief aid; assure the
safe and unimpaired return of refugees and displaced persons; protect and promote
human rights; reconstruct key infrastructure and economic reconstruction; and
take over from KFOR the maintenance of law and order through international police
personnel and the establishment of local police forces.136 UNMIK would perform ba-
sic civilian administrative functions in Kosovo, while organising and overseeing the
development of, and then elections to, provisional, democratic institutions for au-
tonomous self-government. It would subsequently transfer responsibilities to those
provisional institutions, retaining oversight.137 It would also engage with Kosovos
ultimate status after the interim rgime, by facilitating a political process designed
to determine Kosovos future status, taking into account the Rambouillet Accords.138
Lastly, in the nal stage, it would oversee the transfer to authority from the provi-
sional institutions to those established by the political settlement.139
SC Res 1244 explicitly provided for Kosovos autonomous self-government within
Yugoslavia (FRY), while simultaneously providing a legal basis that prevented the
FRY exercising its sovereign rights. It was also explicit that this rgime was tempo-
rary: interim and provisional.140 It provided little guidance, though, on the nal
status that would follow, aside from taking into account the Rambouillet Accords.
Given this ambiguity, various parties have focussed on dierent elements in the
resolution to support their preferred nal status. Those who considered that Kosovo
should remain within Yugoslavia (subsequently Serbia) pointed to the commitment
of all member states to the sovereignty and territorial integrity of Yugoslavia, as set
Paragraph (d) and (e).

Paragraph (a) and (b).
Those functions were: Liaison with the international civil mission and the interna-
tional security presence; Marking/clearing mineelds; 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 .
out in the Helsinki Final Act.141 This provision did reect the stated desire of a num-
ber of states on the Security Council that Kosovo be resolved within the territorial
integrity of Yugoslavia.142 However, this was only in the preamble, not the operative
paragraphs,143 and references to territorial integrity were a common formula in Se-
curity Council resolutions.144 The reference to territorial integrity in the Helsinki Fi-
nal Act could also imply recognition of self-determination,145 though within limits of
territorial integrity,146 though this, in turn, might be aected by human rights.147 The
resolution also specically referred to Yugoslavia and it was questioned whether
it applied to Serbia in the event of the break up of that state.148 Finally the provision
referred to the commitment of UN member states, which might imply that other
organisations (such as Kosovos institutions) were not so bound.149
Those in favour of Kosovos independence, highlighted the reference to Ram-
bouillet, which referred to a settlement based on the will of the people.150 Nonethe-
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 denitive 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 armed East Timors
transition to independence also rea rmed, respect for the sovereignty and territo-
rial 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 Contribu-
tion 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 Contribu-
tion of Kosovo, April , paras. ., ..
24 I. 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 pend-
ing a nal settlement,152 a political process153 and interim,154 to underline the
non-committal and temporary nature of the legal framework. Lastly, they pointed
to what they saw as the telling absence of any express prohibition of independence
in the resolution.155
The language of the resolution also alludes confusingly to the vocabulary of self-
determination. Kosovo is described as a people, the term associated with the right,
though it is the people of Kosovo,156 suggesting a more generic usage. It also refers
to all people in Kosovo,157 again generic, and a population,158 a term usually used
when the right does not apply. This provides scope for argument, but nothing that
specically recognises Kosovo as a people with a right of self-determination.159
This ambiguity provides a notable contrast with the other transitional author-
ity of this period, the United Nations Transitional Authority for East Timor (UN-
TAET), established in SC Res. 1272, on 25 October 1999, which itself was modelled
on SC Res. 1244. SC Res. 1272 identied the East Timorese as a people and referred to
a process of transition towards independence as an accurate reection of their views.
But see Argentina: There is a reference to the will of the people, but this by no means
amounts to recognition of a people in the legal sense. Written Statement of Argentina,
April , para. .
Written Statement of Cyprus, April , para. ; Written Statement of Romania,
April , para. ; Written Statement of Russia, April , para. ; Written
Statement of Spain, April , para. .
Written Statement of Czech Republic, April , ; Written Statement by Den-
mark, April , para. .; Written Statement of Estonia, April , para. ;
Statement of Ireland, April , para. ; Written Statement of Poland, April
, para. .
Declaration by Sierra Leone, April , ; Written Statement of Switzerland,
April , para. ; Written Statement of United Kingdom, April , para. .;
Written Statement of United States of America, April , ; Written Contribution
of Kosovo, April , para. ..
Statement of Germany, April , ; Written Contribution of Kosovo, April
, paras. ., ..
Written Statement of Swtizerland, April , para. ; Written Statement of United
Kingdom, April , para. .; Written Contribution of Kosovo, April ,
para. .;
Paragraph .
Annex , paragraph .
Preamble.
This should also be seen in the context of the general antipathy to secession. See Helen
Quane, A Right to Self-Determination for the Kosovo Albanians? Leiden Journal of
International Law (): -.
The UNTAET administration was to function for a specied period.160 In contrast,

UNMIKs 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 accord-
ing to the situation in the territory and the involvement of dierent organisations.162
In its initial conguration in 1999, it had four pillars: humanitarian aairs under
the UNHCR; democratisation and institution-building under the OSCE; and recon-
struction under the EU; the UN-led civil administration.163 On 15 July 2000, as the
humanitarian emergency receded, Pillar I under the UNHCR, was ocially phased
out.164 On 21 May 2001 a new Pillar I, on law enforcement and justice, was estab-
lished, reecting 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 rst outlined in a statement by the SRSG on June . UN Doc.
S// ( July ), para. , . See s.(), UNMIK Regulation /: All leg-
islative 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, -.
26 I. Introduction
was the Principal Deputy and deputies for each pillar.169 International administra-
tors were in charge of each of the ve regions and thirty municipalities of Kosovo.170
These international administrators were assisted by local sta, who were intended
to take an increasingly prominent role.171 Kosovar participation in decision-making
initially took place only in an advisory capacity through a series of committees. At
the political level, the Kosovo Transitional Council, chaired by the SRSG, was to
include leaders from the main ethnic and political groups and to provide a sounding
board for UNMIK decisions and facilitate support for those decisions. In the admin-
istration, Joint Civilian Commissions, chaired by the regional administrators, were
established in health, universities, education and culture, municipalities and gover-
nance, post and telecommunications, and power. A Joint Advisory Council advised
on the selection of judges and prosecutors.172
The goals of UNMIK were to reconstruct Kosovo as a stable, peaceful society
in which, all peoples can enjoy the benets of democracy and self-governance,173
based on the rule of law, human rights and multiethnic governmental structures,
with a viable, self-sustaining, market-based economy integrated into south-eastern
Europe.174 UNMIKs Constitutional Framework 2001 was explicit that the develop-
ment of self-government in Kosovo should be directed towards achieving European
standards and closer integration with Europe.175
This rgime of political and economic development according to European stan-
dards had strong parallels with an earlier tradition of foreign rule: trusteeship.176
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 Ruert, The Administration of Kosovo and East
Timor by the International Community, International and Comparative Law Quar-
terly (): -.
UN Doc. S// ( July ), para. .
Ibid. paras , -, -, .
s.., Constitutional Framework .
See Judge Canado Trindade, Separate Opinion, Kosovo Opinion, paras. , -, ,
; Henry H. Perritt, Structures and Standards for Political Trusteeship, UCLA Jour-
nal of International Law and Foreign Aairs () -; Michael Bothe and Thilo
Marauhn, UN Administration of Kosovo and East Timor: Concept, Legality and Limi-
tations 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 Administrations Open-Ended Mandate, Euro-
pean Journal of International Law (): -; Wilde, note above, -;
Stahn, note above, -, -; Ralph Wilde, International Territorial Adminis-
tration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford: Oxford
University Press, ), , -, -.
This principle, which derived from liberal philosophers, like Edmund Burke177 and
John Stuart Mill, 178 was central to Western colonial thought and a guiding principle
behind mandates under the League of Nations, and the Trusteeship and Non-Self-
Governing Territory systems in the UN Charter.179 Indeed, Article 77(1)(c) of the
Charter allows for a territory to be designated as a Trust Territory, and placed under
an administration with obligations to promote its political and economic advance-
ment, protection of human rights, and the progressive development of self-govern-
ment.180 This was very much like the rgime proposed for Kosovo. However, this sys-
tem was seen as tainted, by institutionalising colonialism, and no attempt was made
to revive it. Instead, the legal basis for UNMIK and similar rgimes of international
territorial administration came from the Security Council.
Nonetheless, not only were there similarities in SC Res. 1244 to the basic goals of
trusteeship, but its basic formula was also a trade o of good government over any
immediate form of national government. This ideology expanded as the administra-
tion progressed with the creation of benchmarks for development and the policy of
standards before status. This connected with another idea at the time with echoes
of trusteeship, earned sovereignty, in which institution-building provided the basis
for political status.181 However, if a lesson can be drawn from trusteeship, it is that
foreign rule justied by good governance can be undermined by demands for nation-
al government. Indeed, there was a nearby historical example from the nineteenth
century: the Ionian Islands, o the Albanian coast, where an attempt by British lib-
erals to establish good government was frustrated by the local preference for, a bit
of bunting with the Greek colours on it. 182
Edmund Burke, Speech on Mr. Foxs East India Bill, in The Works of Edmund Burke
(London: George Bell and Sons, ), volume II, ; Edmund Burke, Speech on Mov-
ing his Resolutions for Conciliation with the Colonies, in The Works of Edmund Burke
(London: George Bell and Sons, ), volume I, .
John Stuart Mill, Considerations on Representative Government, in Utilitarianism,
Liberty, Representative Government (London: J. M. Dent and Sons, ), .
See Namibia (Advisory Opinion), ICJ paras. - ( June). See also Charmian
Edwards Toussaint, The Trusteeship System of the United Nations (New York: Frederick
A. Praeger, ), -; H. Duncan Hall, Mandates, Dependencies and Trusteeship (Lon-
don: Stevens and Sons, ), , -; Hans Kohn, The United Nations and National
Self-Determination, Review of Politics (): ; D. Rauschning, International
Trusteeship System, in The Charter of the United Nations: A Commentary, ed. Bruno
Simma (Oxford: Oxford University Press, ), -.
See Ruert, note above, .
See Paul R. Williams and Francesca Jannotti Pecci, Earned Sovereignty: Bridging the
Gap between Sovereignty and Self-Determination, Stanford Journal of International
Law (): -; Knoll, note above, -.
Quoted in Bernard S. Cohn, Representing Authority in Victorian India, in The In-
vention of Tradition, eds. Eric Hobsbawm and Terence Ranger (Cambridge: Cambridge
University Press, ), . See also Sarah Wambaugh, A Monograph on Plebiscites
with a Collection of Ocial Documents (New York: Oxford University Press, ), -
.
28 I. Introduction
A further parallel with earlier systems of foreign rule was the relationship be-
tween UNMIK and local Kosovar politicians. The UN designed and established in-
stitutions for Kosovo, which created opportunities for Kosovo politicians, but as self-
government progressed, the UN depended on their cooperation for its success. This
dependency meant that the UN had to continuously engage with Kosovo national-
ism, attempting to direct it to more moderate paths. The period of self-government in
Kosovo was characterised by an ongoing friction between the SRSG and Provisional
Institutions.183 Ultimately, the 2008 Declaration of Independence was the work of
two UN-established, but locally controlled organs: the Assembly and Presidency,
working under the nationalist guise of being representatives of the Kosovo people.
a The Initial Humanitarian Challenge

The rst UN ocials 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 eth-
nic 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 return-
ing 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 lled by the KLA and organised crime, with Kosovo becoming a centre
for tracking in drugs and women.186 Looting was widespread and there were daily
killings, with violence directed against suspected collaborators, as well as non-Al-
banians, in particular, Serbs and Roma. In a reverse ethnic cleansing, 220,000 inter-
nally 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. -. Hansjrg 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. , .
town of Mitrovica, which divided along the Ibar River, with the north and south
banks becoming divided between Serbs and Albanians.189
The KLA was demilitarised on 20 September 1999, but this left the problem of
what to do with 10,000 registered combatants who needed reintegration into so-
ciety. Without jobs they could be a highly destabilising element. Vacancies in the
newly established police, re and civil services were not enough to absorb the bulk of
the ghters, therefore, an unarmed civilian emergency corps, the Kosovo Protection
Corps (KPC) was created. Like other new Kosovo institutions it was intended to be
multiethnic.190 Nonetheless, minority recruitment was extremely low and the KPC
was in general viewed with anxiety by Kosovos minorities. Some of its members
were associated with criminal activity.191
The destabilising potential of KLA ghters became evident with the start of guer-
rilla attacks on government forces in states bordering Kosovo. A low level insurgency
began in 2000 in the ethnic Albanian Presevo Valley region of southern Serbia, esca-
lating in November. In March 2001 ghting spread into Macedonia in the predomi-
nantly Albanian region around the city of Tetovo. Both movements, were short-lived
and demobilised in the summer of 2001.192 Nonetheless, they underlined the violent,
irredentist possibilities for Albanian nationalism in Kosovo.
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 administra-
tion when public ocials from the previous government, overwhelmingly Serb, had
ed.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. .
30 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 dicult in such a po-
larised society. 400 schools managed to reopen for the new term in September 1999,
but only two of these were mixed.203 400 judicial and prosecutor positions were lled
by 2000, but only 46 by non-Albanians, of whom just seven were Serbs.204 Serb ju-
dicial candidates were often forced to resign or ee.205 Correspondingly, minorities
complained of discrimination in courts and international judges and prosecutors
had to be deployed to restore condence.206 The only public institution considered to
be successfully multiethnic was the Kosovo Police Service (KPS), which broadly met
its targets for minority and female recruitment.207
One sensitive issue was the law that the new administration would apply. UN-
MIK initially maintained the laws previously in eect (i.e. Serbian and Yugoslav)
provided that they complied with internationally recognised human rights stan-
dards and the Security Councils mandate.208 However, this provoked threats of non-
cooperation from politicians and resignations of judges and prosecutors, who saw
the law as the main instrument of their persecution after the abolition of autonomy.
They demanded the restoration of the pre-1989 law when Kosovo was autonomous,
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// ( 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 ).
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 con-
tract with the Kosovo people,211 whose ful lment required meeting prescribed
standards. The transfer of authority to self-governing institutions took place in two
stages: rst, 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 Al-
banians. 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 cre-
ated.215
The transfer of authority to new municipal assemblies depended on their attain-
ment of several benchmarks, including nancial 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 to-
gether constructively in local government,217 with the municipal civil service becom-
ing 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// ( December ), paras. -; UN Doc. S// ( March
), para. .
UN Doc. S// ( March ), para. ; UN Doc. S// ( March ),
para. .
32 I. Introduction
not agreed a budget, and three were gridlocked by political disagreement.219 Minor-
ity participation was low by administrative standards, averaging less than 10,220
though UNMIK had intervened to push this to 12.221 40 of municipalities had
no translation sta.222 Ocial signs were bilingual in only six municipalities; thir-
teen were partially bilingual, but with the Serbian usually blacked out; and fourteen
were monolingual.223 Serb involvement was also undermined by parallel structures
in education, health and administration, funded and directed from Belgrade, which
existed in virtually all municipalities with a sizeable Serb population.224 Moreover, as
municipal authorities gained responsibilities, so they increasingly challenged UN-
MIKs authority.225
The next phase was the establishment of self-governing institutions for Kosovo.
On 15 May 2001 the SRSG promulgated the Constitutional Framework on Interim
Self-Government in Kosovo. This established the institutions of Kosovar self-gov-
ernment, including the Kosovo Assembly, Government and Presidency,226 as well
as, recognising international human rights obligations227 and the rights of ethnic
and linguistic communities.228 On 17 November elections were held for the Kosovo
Assembly.229 The LDK was the largest party, with 45.65 of the vote, followed by the
PDK on 25.7.230 Kosovo Serbs again did not participate.231 Nonetheless, thirty-ve
seats in the 120 seat Assembly were held by minorities, though this included twenty
set-aside seats, which had been reserved for communities.232 Disagreement between
the main parties prevented the formation of a government for over three months,
after which a coalition agreement was reached providing for Ibrahim Rugova to be
President and the PDKs Bajram Rexhepi to be Prime Minister.233 Nine departments
in the UNMIK administration were transformed into ten ministries under the new

UN Doc. S// ( April ), para. ; UN Doc. S// ( October ),
para. . See also Judah, note, above, .
Article ., Constitutional Framework for Provisional Self-Government, UNMIK Regu-
lation / ( May ).
Article .
Article .
Ibid. Annex IV.
Ibid. para. .
UN Doc. S// ( September ), para. ; S// ( January ), para. .
government,234 two of which were reserved for minorities: one for Serbs and the
other for another community.235
UNMIK immediately transferred political authority to the newly-elected pro-
visional institutions, but the transfer of executive functions to local civil servants
was incremental. Progress in creating an impartial multiethnic civil service proved
uneven. Filling senior positions and recruiting minorities was dicult, due to con-
tinuing politicisation, a relatively low salary, and for Serbs, opposition from politi-
cal parties236 and better conditions in the parallel structures.237 Nonetheless, by the
end of 2003, all non-reserved responsibilities were transferred to the provisional
institutions.238 The SRSG still retained a signicant number of reserved powers, in
particular, relating to Kosovos external relations.239 The new institutions, however,
began to challenge this authority, showing in the eyes of the UN: an increasing de-
sire to encroach on the powers reserved for the Special Representative rather than
concentrating on the urgent matters over which these bodies have responsibility.240
The SRSG had a veto over the Provisional Institutions and exercised it a number
of times.241 Nonetheless, despite these clashes, he still reported that it was easier
to pressure central institutions to comply with UN standards than the municipali-
ties.242
Serbia was also in a transition to full democracy, with Miloevi being forced
to stand down from the Presidency of Yugoslavia in October 2000, after losing an
election to Vojislav Kotunica. He was arrested in March 2001 and transferred to
the International Criminal Tribunal for the Former Yugoslavia on 28 June, where
he died on trial for genocide, crimes against humanity and war crimes on 11 March
2006. A key argument behind Kosovo independence was the human rights situation
UN Doc. S// ( April ), paras -.

UN Doc. S// ( January ), paras -.
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 cross-
boundary transit of goods, registration of habitual residents, the housing and property
directorate, scal 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. .
34 I. Introduction
in Yugoslavia. However, following Miloevis removal, Serbia could argue that those
concerns no longer applied. 243
d Benchmarks
The development of self-government and transfer of authority to provisional institu-
tions was guided by benchmarks. In April 2002 the SRSG, Michael Steiner outlined
a series of benchmarks which needed to be achieved before a discussion of Kosovos
status, an approach known as standards before status: 244
[E]xistence of eective, 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 Pro-
tection Corps in line with its mandate.245
Standards before status divided politicians according to their communities.246 Lead-

ing 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 stan-
dards had been achieved.249 The UNs 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 quar-
terly 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 Serbias Good Guy, Financial Times ( October ).
UN Doc. S// ( October ), para. ; Knoll, note above, -.
UN Doc. S/PV. ( April ), .
Ibid. para. .
This was endorsed in a statement by the President of the Security Council on Decem-
ber , UN Doc. S/PV. ( December ), -.
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 Kosovos independence.253
e The Ethnic Violence of 2004

At the start of 2004 Kosovo remained ethnically divided and poor. The rate of mi-
nority returns was low. Little progress was made in the ocial use of minority lan-
guages. Indeed, the Public Statistical Oce 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 mi-
norities to work in ministries in Pristina was sporadically subjected to stone throw-
ing.254 Moreover, while UNMIK had made substantial progress developing political
self-government for Kosovo, economic reform was much more hesitant. A structure
for privatising Kosovos 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 Unemploy-
ment 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 ghters and KPC members for murder. Spontaneous rioting
broke out, inamed 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 ocer
and a KPS ocer were killed by Albanian gunmen who red 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// ( January ), paras. -, , , , , .
Henry H. Perritt, Economic Sustainability and Final Status for Kosovo, Univer-
sity of Pennsylvania Journal of International Economic Law (): ; Knoll, note
above, -.
UN Doc. S// ( January ), paras. -.
UN Doc. S// ( April ), paras. -. Human Rights Watch, Failure to Pro-
tect: Anti-Minority Violence in Kosovo, March , : (July ). See Judah, note
above, -.
36 I. Introduction
4,100 minorities were displaced, more than the 3,664 who had returned the previ-
ous year.259 Moreover, the response to the violence from provisional institutions was
muted and equivocal. The Prime Minister, Bajram Rexhepi condemned the violence,
but a minister from his PDK party blamed Serbs. In the municipalities, condemna-
tion from assemblies was often tempered with anti-Serb and anti-UNMIK declara-
tions, nationalist displays, and sympathy for the rioters.260
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. Eides report presented in August 2004 turned UNMIKs underlying narra-
tive of progress on its head. Its key theme was expressed in a complaint from an Al-
banian 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 remittanc-
es diminished. Moreover, there was little that UNMIK could do. Further privatisa-
tion might provide benets, at best, in the mid-term and the inecient 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 incompe-
tent, 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

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. .
project, which would continue after nal status negotiations. Attempts to make
Kosovo adhere to unrealistically ambitious standards had made Kosovars question
the sincerity behind them.268 It was time to consider, a workable exit strategy.269
UN states had eectively used UNMIK to keep the lid on Kosovo, but this had
become untenable.270 Moreover, there was nothing to be gained from delaying:
There will not be any ideal moment for starting such preparations not even a
good moment.271 However, such an exit strategy required the international commu-
nity to, stay the course in a coherent way.272 Such international coherence, though,
would ultimately prove an insurmountable challenge.
7 The Final Status Negotiations

The Secretary-General endorsed Eides 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 nal 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 nal status, or standards
with status. It also welcomed the initiative by the Secretary-General to appoint a
Special Envoy on Kosovos future status, former Finnish President, Martti Ahtisaari,
who had an oce and secretariat based in Vienna (UNOSEK). Lastly, the Council
recognised the basic structure of the nal 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 Prin-
ciples 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. Ac-
cessed October . http://www.unosek.org/docref/ContactGroup-
TenGuidingprinciplesforAhtisaari.pdf
38 I. 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 specic dimensions on the settlement.
There would be no return to Kosovos pre-March 1999 status. The territory would be
neither partitioned nor enter into a union with another state or part of another state
(i.e. no greater Albania). No unilateral or forcible measures would be allowed. The
territorial integrity of neighbours would be respected. The Group later added that
the settlement also had to be acceptable to the population of Kosovo.278 Moreover,
regardless of the form of the settlement, an international civil and military presence
would remain to supervise compliance with its terms and to monitor and support
the implementation of standards.
Fifteen rounds of negotiations took place in 2006,279 which also saw the separa-
tion of Serbia and Montenegro in June.280 On 30 September 2006, Serbias National
Assembly adopted a new Constitution, narrowly endorsed in referendum, which
oered Kosovo substantial autonomy within Serbia. However, whether this actu-
ally guaranteed autonomy, was questioned in an opinion by the Council of Europes
Venice Commission, which noted that autonomy was subject to laws passed by the
Serbian Assembly.281 Nonetheless, despite repeated statements by the Contact Group
that the process once started could not be blocked, a settlement remained elusive.
By 20 September Contact Group ministers, noted the continuing distance between
Belgrade and Pristina, and without Russian support called on the Special Envoy to
draw up proposals for a comprehensive settlement.282
On 2 February 2007 Martti Ahtisaari presented his proposals to the two parties.
The Comprehensive Proposal for the Kosovo Status Settlement comprised a frame-
work text with twelve annexes and was formally neutral on Kosovos status.283 None-
theless, it gave Kosovo attributes normally associated with statehood, such as the
Weller, note above, .

Ibid. .
In Yugoslavia (FRY) was reconstituted as the State Union of Serbia and Mon-
tenegro. Article of the Constitution provided that either member state could with-
draw 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 De-
mocracy 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_
NewYork.pdf.
Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S///Add.
( March ).
ability to conclude international agreements and join international organisations.284

While the Provisional Institutions endorsed it subject to some modications, the
Serbian National Assembly rejected it and in subsequent negotiations Serbias Prime
Minister called for new negotiations based on substantive autonomy.285
On 26 March 2007 the proposals were forwarded to the Security Council, to-
gether with a separate recommendation from the Special Envoy. Ahtisaaris assess-
ment 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 NATOs intervention
in response to the repression of the Miloevi 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 Like-
wise continued international administration was unsustainable. UNMIKs institu-
tions had set in motion a dynamic political process reinforcing legitimate Kosovar
expectations for ownership and responsibility in their aairs 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 eco-
nomic development.289
Ahtisaaris 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 conicts. He cited
three reasons stemming from SC Res. 1244: the denying of a role for Serbia in Koso-
vos government, placing the territory under temporary UN administration and a
political process designed to determine its future: The combination of these factors
makes Kosovos 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 com-
mitment to independence, a settlement proved impossible. Russia siding with Ser-
Article ().
Weller, note above, -.
Report of the Special Envoy of the Secretary-General on Kosovos Future Status, UN
Doc. S// ( March ), paras. and .
Ibid. para. , -.
Ibid. paras. and .
Ibid. paras. and .
Ibid. para. .
40 I. Introduction
bia, attacked Ahtisaari and called for fresh negotiations under a new mediator.291
The failure of the Council to adopt the Status Settlement Proposal initiated further
rounds of diplomacy. There were attempts to nd a formula which would allow the
Council to adopt the proposals, if not the recommendation of independence. Ne-
gotiations between Belgrade and Pristina continued under a Troika of US, EU and
Russian representatives.292 None of the initiatives succeeded, and there was a sense,
reected in the report by the Secretary-General in January 2008, that: events on the
ground could take on a momentum of their own, putting at serious risk the achieve-
ments and legacy of the United Nations in Kosovo.293
8 The Unilateral Declaration of Independence

On 17 February 2008, a special session of the Kosovo Assembly attended by the Pres-
ident, 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 in-
dependence: 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 reected 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 su-
pervised independence. The Declaration accepted the obligations under Ahtisaaris
Comprehensive Proposal and recommendations,298 and invited a continued interna-
tional 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 Euro-
pean countries.300 However, after an initial burst of support, the pace of recognition

Ibid. -.
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
slowed,301 with a clear majority of countries not extending ocial recognition. It was
also questionable to what extent Kosovo ful lled the generally-cited Montevideo
criteria for statehood, in particular, with the continued international involvement in
its administration, as well as, Serb areas outside government control.
The acceptance of an international presence to supervise implementation of the
Ahtisaari Plan had signicant implications for Kosovos self-government. Shortly af-
ter the Declaration, on 28 February, an International Steering Group, composed of
European countries recognising Kosovo and the US, established an International
Civilian Oce (ICO) for Kosovo, headed by an International Civilian Representa-
tive (ICR). Pieter Feith, the European Union Special Representative for Kosovo took
on this additional role.302 The ICRs role was to supervise implementation of the
Ahtisaari Plan and was invested with extensive powers, including the annulment
of laws and government decisions, and the authority to sanction and remove public
ocials.303 The role was modelled on a similar post in Bosnia-Herzegovina,304 but
Bosnia at that stage was an established member of the United Nations, not a state
struggling for recognition.305
The declaration also signalled the marginalisation of the SRSG. Reliant on coop-
eration with Kosovos institutions, he found himself unable to exercise the powers
still formally vested in him by SC Res. 1244.306 The Kosovo government indicated
that they would only support a continued UN presence in a residual role.307 On 12
June 2008 the Secretary-General recommended reconguring UNMIK to perform
a range of limited functions, including monitoring, reporting, facilitating Kosovos
engagement with international agreements and assisting with dialogue between
Pristina and Belgrade.308 There was also a shift in the international administration
from the UN to the EU, with the EUs rule of law mission, EULEX, taking on respon-
sibilities for policing, the administration of justice and customs. EULEX was created
by the EU Council, with only a coordinating role with UNMIK, though it claimed
to derive authority from SC Res. 1244.309 This basis, however, was challenged, in par-
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 Decla-
ration 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. .
Ibid. paras. , .
Council Joint Action //CFSP, February , Ocial Journal of the European
Union L/ (). On the controversy surrounding its establishment see Erika de
42 I. 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 Secu-
rity Council on 26 November 2008.311 On 9 December, 1,045 EULEX police ocers
took over from the UNMIK police and EULEX assumed its functions in justice and
customs.312 By the 1 July 2009 UNMIK was reduced to a sta of 510.313
9 The Advisory Opinion

Serbia launched a diplomatic oensive to prevent recognition of Kosovo. A key ele-
ment 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 As-
sembly, 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 Serbias 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-Gov-

ernment 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 con-
sidered that the Declaration did not violate international law. The Courts exami-
nation of the legality of the Declaration divided into two principal areas: general
international law and the lex specialis established by SC Res. 1244.
Wet, The Governance of Kosovo: Security Council Resolution and the Establish-
ment and Functioning of EULEX, American Journal of International Law ():
-.
UN Doc. S// ( November ), para. .
UN Doc. S/PV. ( November ), paras. -.
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).
a General International Law

International law tends to be seen as neutral on secession.318 This hardly does jus-
tice 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 es-
sentially 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 specic320 and interpreted it as narrowly as possible,
focussing on the legality of declaring independence, but not on the wider process of
obtaining it. There was no need to examine whether Kosovo had obtained statehood,
the eects of recognition, and whether secession existed as a positive right.321 The
Court distinguished its function from that of the Canadian Supreme Court in Re
Secession of Quebec (1997) which considered whether international law conferred on
Quebec a positive right to secede from Canada.322 Such questions were outside the
scope of the Opinion. It was only concerned with negative prohibitions, or what was
also called the Lotus principle, that whatever is not prohibited is permitted.323 The
Court, correspondingly, could nd that the declaration of independence itself was
not unlawful, even if the secession (for the sake of argument) was. Within this nar-
row remit, the Court found that there was nothing to prevent such statements: [i]n
no case... does the practice of States as a whole suggest that the act of promulgating
the declaration was regarded as contrary to international law.324
Even though it declared it unnecessary, the Court did stray into aspects of the
law of secession, albeit to dismiss them. A general right to secede was a, subject on
which radically dierent views were expressed by those taking part in the proceed-
ings, in other words, it lacked the necessary opinio juris for custom. Similar dier-
See, e.g., Peter Malanczuk, Akehursts 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 Den-
mark, April para. .; Written Contribution of Kosovo, April , para. .;
But see criticism by Judge Simma, Declaration, Kosovo Opinion, para. . See also rejec-
tion by Serbia, Written Statement of Serbia, April , paras. -.
44 I. Introduction
ences, and thus no custom, also surrounded remedial secession and there was a, a
sharp dierence of views, as to whether this applied to Kosovo.325
Regrets were expressed, by individual judges, that an opportunity to explore a
variety of areas of secession, such as internal and external self-determination, was
passed over.326 Indeed, the observations of states in both the written and oral pro-
ceedings before the Court provide a wealth of ideas from states on this point. None-
theless, they do also underline the Courts position of fundamental disagreement
between states. There was signicant support for remedial secession from several
states.327 However, this has to be weighed against the opposition of others,328 and the
non-committal position taken by states, such as Denmark and the UK,329 as well as
the support from Russia evidently tailored to its recognition of South Ossetia and
Abkhazia.330 In addition, the 35 states who participated were predominantly Euro-
pean. A greater participation from Asia and Africa would most likely increase op-
position to those concepts.
Ibid. para .
See Judge Simma, Declaration, ibid. paras. -; Judge Sepulvda-Amor, Separate Opin-
ion, ibid. para. ; Judge Canado Trindade, Separate Opinion, ibid. para. ; Judge
Yusuf, Separate Opinion, ibid. paras. , -.
See Written Statement of Albania, April , paras. -; Written Statement of
Estonia, April , para. .; Statement of Finland, April , paras. -;
Statement of Germany, April , -; Statement of Ireland, April , paras.
-; Written Statement of Netherlands, April , paras. .-.; Written State-
ment of Norway, April , para. ; Written Statement of Poland, April ,
paras. .-., .; Written Statement of Slovenia, April , ; Written Statement
of Swtizerland, April , paras. -. See also Judge Canado Trindade, Separate
Opinion, Kosovo Opinion, paras. -; Judge Yusuf, Separate Opinion, ibid. paras.
-. See also K. William Watson, When in the Course of Human Events: Kosovos
Independence and the Law of Secession, Tulane Journal of International and Com-
parative Law (): -, .
Written Statement of Argentina, April , paras. , -; Written Statement
of Azerbaijan, April , para. ; Written Statement of Brazil, April , ;
Written Statement of China, April , -; Written Statement by Cyprus, April
, paras. -; Written Statement of Egypt, April , paras. -; Written
Statement of Iran, April , para. .; Written Statement of Japan, April ,
; Written Statement of Libya, April ; Written Statement of Romania, April
, paras. -; Written Statement of Serbia, April , para. ; Written
Statement of Spain, April , paras. -; Written Statement of Slovakia, April
, paras. -. See also Judge Koroma, Dissenting Opinion, Kosovo Opinion, paras.
-.
Denmark: the Danish Government sees no reason why denial of meaningful internal
self-determination, as Kosovo was arguably subjected to at least from the late s,
should be deemed irrelevant in relation to an otherwise legitimate claim of independ-
ence. Written Statement of Denmark, April , .; Written Statement of United
Kingdom, April , paras. .-..
Written Statement of Russia, April , para. .
Were there legal principles that might prohibit a unilateral declaration of inde-
pendence? The most likely candidate was territorial integrity. The Court, however,
dismissed this. The scope of the principle of territorial integrity was con ned to the
sphere of relations between States and thus did not apply to non-state actors declar-
ing independence.331 The Courts reasoning here, though, was curious. It appeared to
reach the conclusion that territorial integrity was a principle of inter-state relations,
by restricting its study to inter-state relations. The ICJ cited three provisions: Article
2(4), UN Charter 1945, Principle 1, Declaration on Friendly Relations, GA Res. 2625
(XXV) (1970) and Principle IV, Helsinki Final Act 1975. All three to related territorial
integrity, but in the context of the threat or use of force between states: a situation
that was not at issue. On the other hand, it overlooked Principle 5 of GA Res. 2625
(XXV) and Principle VIII(1) of the Helsinki Final Act, that contained provisions on
territorial integrity specically in the context of self-determination.332 It passed over
Re Secession of Quebec, which considered secession within a framework of territo-
rial integrity.333 It even excluded its own nding in Western Sahara that territorial
sovereignty could aect the application of self-determination.334
The ICJ did recognise instances when independence declarations were consid-
ered unlawful, noting Security Council practice concerning Southern Rhodesia,
Northern Cyprus and the Republika Srpska. However, it was careful to distinguish
the act of declaring independence from the legal context of the separation. The ille-
gality of those declarations stemmed not from their, unilateral character... as such,
but from connection to, the unlawful use of force or other egregious violations of
norms of general international law, in particular those of a peremptory character
(jus cogens).335 The exceptional character of these resolutions meant that were the
exceptions that proved a rule, or rather the lack of one: that no general prohibition
against unilateral declarations of independence may be inferred from the practice
of the Security Council. Moreover, the Court noted that in respect to Kosovo, the
Security Council has never taken this position.336

See Judge Canado 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 t 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).
Ibid. para. .
46 I. Introduction
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: rst, the scope of SC Res. 1244 and, second, whether the authors
of the declaration had exceeded their powers.
The rst issue was whether the terms of SC Res. 1244 prohibited the Declaration
of Independence. The Court considered that it did not. It highlighted three particu-
lar features of SC Res. 1244 to interpret its object and purpose. First, the interna-
tional 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 ex-
ercise of Serbias 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 territo-
rial settlement, it had specied conditions (e.g. in Cyprus), but here it had remained
silent.338 Thus, SC Res. 1244 and regulations derived from it for Kosovos interim
administration, and instruments which sought to determine Kosovos nal status,
like the Declaration of Independence, simply operated, on a dierent 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. Nonethe-
less, 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 dem-
ocratically-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. ; Writ-
ten Statement by Russia, April , paras. -; Written Statement of Serbia,
April , para. ; Written Statement of Spain, April , paras. , ; Written
Statement of Slovakia, April , para. .
Written Contribution of Kosovo, April , paras. .; .-., ..
but, persons who acted in their capacity as representatives of the people of Kosovo
outside the framework of the interim administration.342
The Courts assessment rested on three mains grounds. First, the text of the dec-
laration did not refer to itself as the work of the Kosovo Assembly and introduced the
authors as, We rather than, The Assembly of Kosovo Second, on procedure,
the Declaration was signed by the Kosovo President, who was not a member of the
Assembly, and was not forwarded to the SRSG for publication in the Ocial Gazette
like other legislative acts. Third, SRSG, who, would have been under a duty to take
action with regard to acts of the Assembly of Kosovo which he considered to be ultra
vires, had failed to intervene.343
The interpretation of these points is open to question, and was vigorously chal-
lenged by individual judges,344 many of whom also questioned the wisdom of allow-
ing individuals apparently to step outside a legal framework by an apparent rhetori-
cal ourish.345 It is signicant, though, that the ability of persons to escape from the
legal framework in which they nd themselves by invoking the will of the people is in
essence the argument of self-determination.346 The ICJ, of course, found nothing that
indicated a right of Kosovo to self-determination, but it recognised a margin which
allowed a similar eect. This might have a signicant impact on future international
territorial administration. Just as the Court appeared to maintain a political margin
around the formation and break up of sovereign states, so this margin could also
extend to the authority of the Security Council when it engages in state-building
projects.
10 Conclusion
Kosovos journey from Yugoslav province to disputed independence has challenged
basic concepts of sovereignty and international law. How should this legal process
be characterised?
The most obvious legal framework is secession. Kosovo, when it was under inter-
national administration, was recognised as being under the sovereignty of Yugosla-
via (FRY) to which Serbia can be seen as a successor. Independence without Serbian
consent is characteristic of secession. However, legally this is only half the picture:
the perspective reected in the general international law part of the ICJ Opinion.

Ibid. para. .
See Judge Tomka, Declaration, Kosovo Opinion, paras. , ; Judge Bennouna, Dis-
senting Opinion, ibid. para. ; Judge Sepulvda-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. .
48 I. Introduction
Serbias sovereignty had been rendered ineective. The Declaration was not intended
to stop Serbia exercising sovereignty in Kosovo, but to prevent it from being able to
do so in future. Of course, other states have lost control over parts of their territory,
but this was not a limitation caused by weak government or a rebellion, but imposed
under a Security Council resolution. Moreover, SC Res. 1244 essentially created the
context for the secession. It provided the basis for the institutions that declared in-
dependence; the legal provisions and actors that were intended to prevent such a
declaration; and the legal and political framework that prevented Kosovars from
exercising greater self-government, and which can be seen to form a substantial part
of the object of the Declaration.
Kosovo has been considered as a candidate for a right of remedial secession. This,
though, has problems. To begin with, it may be doubted whether such a right ex-
ists in international law,347 as the ICJ appears to a rm. However, there are specic
objections relating to Kosovo. First, the initial response to Serbias oppression was
not support for independence, but an autonomous international rgime that lasted
for over eight years.348 Second, Serbia changed its government and its political stan-
dards, and had not exercised authority in Kosovo for years by the time independence
was declared.349 It is may be true that the memory of oppression precluded the pos-
sibility of a peaceful restoration of Serbian authority, but this was more of a political
question for how to terminate the international presence. Th ird, abuses suered by
minorities in Kosovo, undermine the legitimacy of Kosovos claim and could even,
following the same standard, legitimise separatist claims by those minorities.350
Another model for Kosovo is the termination of an international territorial ad-
ministration. This may not, in itself, be determinative. Similar administrations have
ended according to a predetermined status. Thus, UNTAET facilitated East Timors
transition to independence, while UNTAES assisted in Eastern Slavonias reintegra-
tion into Croatia. Kosovo, though, diered from both those administrations. The
intense argument over the terms of a nal status in SC Res. 1244 underline the am-
biguity that existed there, coupled with the open-ended nature of the international
mandate. Without a predetermined endpoint, Kosovo provided greater scope for the
dynamics of international administration itself to shape a nal settlement. If inter-
See James Summers, Peoples and International Law: How Nationalism and Self-Deter-
mination Shape a Contemporary Law of Nations (Leiden: Brill, ), -.
Written Statement of Romania, April , para. ; Written Statement of Russia,
April , para. .
Written Statement by Russia, April , paras. , -; Written Statement of
Romania, April , para. . See Zoran Oklopcic, Populus Interruptus: Self-De-
termination, the Independence of Kosovo, and the Vocabulary of Peoplehood, Leiden
Journal of International Law (): ; Rein Mllerson, Precedents in the Moun-
tains: On Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abk-
hazia, Chinese Journal of International Law (): .
See Serbia, UN Doc. S/PV. ( February ), . See also Morag Goodwin, From
Province to Protectorate to State? Speculation on the Impact of Kosovos Genesis upon
Doctrines of International Law, German Law Journal (): .
national territorial administration has analogies to trusteeship, its termination may

correspondingly resemble decolonisation.
There are strong similarities between trusteeship and the rgime 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 admin-
istration established institutions, according to its own standards, which then lled
with local politicians, who used their position to expand their powers. The interna-
tional presence secured considerable successes in reconstructing Kosovo and build-
ing democratic, multiethnic institutions. Nonetheless, there were limits and failures,
in particular, on the economy, minority returns and a nal 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 indepen-
dence, rather akin to the position of the Republic of China on Taiwan. Independence
also oered the withdrawal strategy most likely to avoid an internal conict, 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 treat-
ed 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-gov-
erning 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 termi-
nation of a very particular type of international territorial administration. An aca-
demic 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 ercely 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 dierent elements, but common fea-
tures 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 Opin-
ion), 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 Den-
mark, April , paras. .-.; Written Statement of Estonia, April , para.
50 I. Introduction
bia has criticised sui generis as an attempt to exempt Kosovo from international
law,355 but the argument, and its component parts, could inuence how that law is in-
terpreted. The legal position that minorities do not have a right to secede is normally
expressed through a balance between self-determination and territorial integrity.
However, typically this balance has been treated as subject to broader considerations
of stability, which reinforces territorial integrity, and oppression, which may give
strength to a self-determination claim.356 Sui generis, by highlighting the distinctive
international administrative context of Kosovo, and thus its limited implications,
while also emphasising oppression, may be seen to shift the weight in the balance
from territorial integrity towards self-determination. It can, therefore, be seen as
a package of arguments which together work to weaken the principle of territorial
integrity. This does not necessarily establish self-determination as a legal right, but it
could, at least, restrict territorial integrity as a limitation on political self-determina-
tion. Conversely, the precedent argument focuses on Kosovo as a secession, a more
common scenario, and strengthens territorial integrity by emphasising instability.
In the words of Serbia: there are dozens of Kosovos in the world, and all of them are
lying in wait for Kosovos act of secession to become a reality and to be established
as an acceptable norm.357
Both arguments may be overemphasising these elements. Kosovo can be seen as
an international administration with distinctive elements, but such rgimes, by their
very nature, tend to be bespoke. Comparisons can be drawn to East Timor, which
also experienced systematic violence,358 and more broadly to a history of internation-
.; 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 State-
ment 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 Is-
lands Question, League of Nations Ocial 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, Vander-
bilt Journal of Transnational Law (): -; Bing Bing Jia, The Independence
of Kosovo: A Unique Case of Secession? Chinese Journal of International Law ():
.
al administration and trusteeship. 359 On the other hand, the precedent argument
has a danger of being self-fullling. In particular, Russia, which described Kosovos
independence, as a, a very dangerous precedent,360 subsequently used it, in part, as
justication for its recognition of secession by South Ossetia and Abkhazia.361
Lastly, while the International Court of Justice, does not formally create prec-
edent, its Opinion has set parameters for future international territorial administra-
tion. If a state found part of its territory placed under international administration
and valued its sovereignty, it would insistent on the timing and method of termi-
nation being specied, with a clear reference to territorial integrity in the opera-
tive part of a Security Council resolution, preferably paragraph one. In this regard,
Kosovo may create a precedent, which, in turn, could make it unique.
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 Aairs of the Russian Federation, August
. Accessed November . http://www.mid.ru/Brp_.nsf/arh/FFED-
ECFDD. Statement by President of Russia Dmitry Medvedev, Au-
gust . Accessed January . http://www.mid.ru/brp_.nsf/eafab-
bcbb/aacccbb?OpenDocument.
II.
Kosovos Unilateral Declaration of
Independence
Chapter 2 Another Frozen Conflict:
Kosovos 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 pub-
lication. He died in July 2010, quite suddenly and before the International Court of
Justice had given its decision in the Advisory Opinion requested by the General As-
sembly Accordance with International Law of the Unilateral Declaration of Indepen-
dence in respect of Kosovo (hereafter, the Advisory Opinion). I, Colin Warbrick, had
been a colleague of his at Durham from his arrival there in 1993 to our departures
to Brunel and Birmingham in 2006, though I had known him for a lot longer than
that. Although we had a similar approach to international law, we did not see eye
to eye on every question which arose. We had had little opportunity to discuss the
Kosovo situation after the Unilateral Declaration of Independence, though we were
of one mind about the illegality of the bombing of Yugoslavia in 1999. I have written
up Kaiyans uncompleted chapter, trying as best I can to do as I think he would have
intended. His plan, it will not surprise those who knew him, was for an extensive
paper and, in this respect, I have not emulated his comprehensive ambition: the pa-
per is not as long as the one he would have produced. I have made occasional notes
of some of my own dierences with his positions and added some brief information
about events after his draft was nished. I have put these as [CW]. I have also at-
tached a brief note on the Advisory Opinion as a postscript. I have not always been
able to nd Kaiyans references and have usually substituted ones of my own but I
have not indicated these instances one by one. Kaiyans death was a great loss to the
many international lawyers who knew him as a committed and reliable authority
and as a good friend.

56 II. Kosovos Unilateral Declaration of Independence
1 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
nal settlement, of substantial autonomy and self-government in Kosovo. Kosovo
was a territorial entity within Serbia, once an autonomous province within the Re-
public 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 Institu-
tions 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 relat-
ed to, this unilateral declaration of independence. The problems discussed below are
those which are, in the rst place, concerned with the issue of self-determination.
This is very clearly of central importance to the entire conict insofar as the puta-
tive statehood of Kosovo rests upon the allegedly lawful exercise of the right of self-
determination. 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/Ser-
bia. 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 Re-
port, (Oxford: Oxford Scholarship, ); C. L. Sriram, O. Martin-Ortega and J. Her-
man, War, Conict and Human Rights (London: Routledge, ), -; Richard Falk,
Achieving Human Rights (New York: Routledge, ), -.
See Noel Malcolm, Kosovo: A Short History (Basingstoke: MacMillan ), Chapters
and ; Written Pleadings of Serbia Accessed October . www.icj-cij.org/docket/
les//.pdf pp - and Written Pleadings of The Authors of the Unilater-
al Declaration of Independence. Accessed October . www.icj-cij-org/docket/
les//.pdf pp -. Kosovo is used in this paper without any implications for
its status. Kosovars, though not strictly accurately is used in general to refer to the
Albanian Kosovar population of Kosovo.
The identity of the body which adopted the unilateral declaration of independence was
a highly contested issue in the Advisory Opinion proceedings (see below).
General Assembly Resolution /, UN Doc. A/RES// ( October ).
Chapter II, Kaiyan H. Kaikobad Another Frozen Conflict: Kosovos Unilateral Declaration of Independence and International Law 57
ereign state of Kosovo. The power of the Security Council regarding the creation of
states is the problem third in line for consideration. It involves scrutinising the issue
of whether or not the relevant provisions of the Charter of the United Nations can
be interpreted to support the contention that the Security Council has the power
eectively to create an independent state and, if this power does exist, then what
constitutes its precise scope and eect. At the fourth level, attention will be paid to
the legal obligations of certain relevant bodies in the light of the asserted statehood
of the Kosovo entity, namely the governmental authorities in Kosovo; UNMIK; the
European Union; and the Security Council. Finally, it will be useful to round o the
discussion by examining the rights of and remedies available to Serbia as a result of
the unilateral declaration of independence by Kosovo.
3 Self-Determination
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 le-
gal implications of Kosovos action in this regard, it is appropriate briey to examine
the doctrine of self determination. First, as far as the meaning of self-determination
is concerned, the denition, as it were, contained in the General Assemblys Dec-
laration on Principles of International Law Concerning Friendly Relations and Co-
operation among States of 1970 will suce.6 The rst 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 cul-
tural 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 denition similar but not identical in substance and
is explicitly a statement of international law; but the Declaration is a renement
of the denition contained in paragraph . See GA Res. (XV), UN Doc. A/
RES/ ( December ). Generally on self-determination, see the Namibia Ad-
visory Opinion, ICJ ( October); and the Western Sahara, Advisory Opinion,
ICJ ( June).
The four essential points which come out of this denition are as follows. First, there
must be a group of individuals which can be described as a peoples, and this means
that there must be a denite sense of being a self-contained, cohesive group consti-
tuting an entity, no matter how small or big that entity may be.7 Although the deni-
tion is silent on this, it would be optimal in terms of international law if the peoples
were in fact associated with an identied territory in which it could exercise its right
to self-determination. Secondly, these groups are vested with a right to determine
certain aspects of their future as an entity; and again although the Declaration does
not so stipulate, that determination may be carried out in a variety of ways, includ-
ing, a plebiscite, referendum, general elections mushwara and the like.8 Indeed, as
the International Court held in the Western Sahara advisory opinion, paragraph 2
of the General Assembly Declaration on the Granting of Independence to Colonial
Countries and Peoples,9 conrms and emphasises that the application of the right of
self determination requires a free and genuine expression of the will of the people
concerned.10 In General Assembly Resolution 1541 (XV) on the Principles for the
Transmission of Information under Article 73 (e) of the Charter,11 Principle VII (a)
stipulates:
Free association should be the result of a free and voluntary process by the peoples of the
territory concerned expressed through informed and democratic processes.
A similar sort of provision exists for associated territories. The Court acknowledged,
however, in the Western Sahara Advisory Opinion that there were cases in which
the General Assembly had dispensed with consultation processes. The Court held
that in those cases the position taken was that the inhabitants did not constitute a
peoples entitled to self determination or on the conviction that a consultation was
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 independ-
ence 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, Geo-
politics 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 Obliga-
tion Exists to Transmit the Information Called for Under Article e of the Charter,
General Assembly Resolution (XV), UN Doc. A/RES/ ( December ).
totally unnecessary, in view of special circumstances,12 but it did not spell out what
those circumstances could be.
Thirdly, the right to make this determination must be free from any form of ex-
ternal interference. This would include notions not only negative in character, such
as compulsion, coercion and duress, but also in principle all manner of positive in-
ducements, including the promise of nancial rewards and property benets. The
rationale is simple enough: any kind of negative or positive interference will skew the
result and will not be a fair and accurate representation of the wishes of the people.
The fourth point is concerned with the nature of the determination to be made by
the peoples in question; and here it is the case that the right extends to deciding not
only the future political status of the group as a formal entity, but its economic, so-
cial and cultural systems as well. This is in some ways a relic of the era in which the
Declaration was adopted by the General Assembly. During the Cold War, the Com-
munist bloc and the developing world were all too happy to implement development
plans which were socialist in nature and content; and were none too happy to be
reprimanded for abandoning strict market economic policies.
Reference in brief may also be made to the various ways in which the right of self-
determination may manifest itself; or as the Friendly Relations Declaration puts it, to
the modes by which the right of self-determination is implemented. There are three
forms as outlined in the fourth paragraph of the self-determination principle in the
Friendly Relations Declaration.13 The rst manifestation of the right as expressed by
a non-self- governing territory is the one which, in actual fact, denes the very right
itself, namely the sovereign independent State.14 In the second place, an act of self-
determination may result, not as the choice to be an independent State but as one in
which the peoples has decided either to integrate with another existing State or be
in free association with it.15 Thus, when Zanzibar merged with Tanganyika in 1963;
or when Singapore merged with Malaya in 1962, and when British Togoland decided
to join Gold Coast/Ghana in 1956, these entities were denying themselves indepen-
dence but not the right of self-determination. Similarly, by agreeing the Compact
of Free Association with the United States, which came into eect in 1994, Palau is
understood to have exercised its right of self-determination.16
The third form of manifestation is an omnibus category. Thus any kind of emer-
gence into any other political status freely determined by a people constitutes one
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 self-
determination is against alien occupation. CW]
of the modes of implementing the right of self determination by that people. It is

this renement 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 Portu-
gal 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 domi-
nation, to the peoples of mandate and trust territories, to peoples under alien oc-
cupation 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 self-
determination, 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 tenta-
tive 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 ve dierent ways of viewing this right. In the rst place, self- de-
termination 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 Worlds 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 In-
ternational Law (Oxford: Oxford University Press, ), -.
Marc Weller, Settling Self-determination Conicts: 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 ).
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 Na-
tions 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 prin-
ciple, and that United Nations organs do not permit Article 2(7), to impede discus-
sion 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 justiably be concerned with self-determination as reected 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 pro-
mote 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 jeop-
ardised by implementing the right of self determination then that implementation
Ian Brownlie, Principles of Public International Law, Sixth Edition, (Oxford: Oxford
The Mandate system created three categories of mandated territories, a system which
helped the victorious States to redistribute the territories of the two vanquished Em-
pires of Austro-Hungary and Turkey/Ottomans in Africa and Asia. Territories in
Europe were granted independence. The Mandate system was, as Akehurst puts it, a
compromise between the Allies seeking annexation and President Wilsons ideal of
self-determination. See Michael Akehurst, A Modern Introduction of International
Law, Fourth edition, (London: Routledge, ), . For the mandates system, see Arti-
cle of the Covenant.
See Patrick Thornberry, The Principle of Self-Determination, in The United Nations
and the Principles of International Law Essays in Memory of Michael Akehurst, eds.
Colin Warbrick and Vaughan Lowe (London: Routledge, ), , citing Cassese, The
Helsinki Declaration and Self Determination, in Human Rights, International Law and
the Helsinki Accord, eds. Thomas Buergenthal and Judith R. Hall (New York: Universe
Books, ), . [This looks to me more like a decision about whether or not a particu-
lar claimant group is a peoples for the purposes of self-determination (or like questions,
such as problems in identifying the relevant territory), rather than a limitation on any
right of self-determination. CW].
is somehow questionable. There is a lot of good sense in this approach to the matter
for it is easy to think of many examples whereby the implementation of self-deter-
mination would cause massive regional instability. The Kurds claim to statehood is
indeed stymied by this fact for a Kurdish state would destabilise Iraq, Syria, Iran,
Azerbaijan, and deprive Turkey of approximately one-third of its territory. Such a
situation is dicult to accept.
Thirdly, self-determination has a human rights aspect,24 proof of which can be
had by referring to Article 1 of the International Covenant for International and Po-
litical Rights; and for the International Covenant for Economic and Social and Cul-
tural Rights. As the Human Rights Committee stated in General Comment No. 1225:
In accordance with the purposes and principles of the Charter of the United Nations,
article 1 of the International Covenant on Civil and Political Rights recognises that all
peoples have the right of self-determination. The right of self-determination is of particu-
lar importance because its realisation is an essential condition for the eective guarantee
and observance of individual human rights and for the promotion and strengthening of
those rights. It is for that reason that States set forth the right of self-determination in a
provision of positive law in both Covenants and placed this provision as article 1 apart
from and before all of the other rights in the two Covenants.26
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 unqualied 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 Jour-
nal of International Law (): .
Human Rights Committee, General Comment No. : The Right of Self-Determination
of Peoples, Twenty-rst Session, March .
There is considerable dispute about what exactly the common Articles of the Cov-
enants mean but they cannot mean exactly or solely the same as self-determination
in the colonial context, cf Article () and () and see Antonio Cassese, Self-Determi-
nation of Peoples: a Legal Reappraisal (Cambridge: Cambridge University Press, ),
-.
See generally Brownlie, note above, -.
alive the colonial system, although it divided colonial peoples into two classes (non-
self-governing territories and trust territories)...28
There is little reason to dwell on this question any further because, as the Inter-
national Court of Justice observed in its advisory opinion in the Namibia case that
the subsequent development of international law in regard to non-self-governing
territories, as enshrined in the Charter of the United Nations, made the principle of
self- determination applicable to all of them.29 Ever since the adoption of the 1960
General Assembly Declaration on the Granting of Independence to Colonial Ter-
ritories and Peoples,30 it is more than clearly apparent that self-determination, in
addition to being a lawful policy and goal of the governments of metropolitan States,
is a legal right vested in the peoples of non-self-governing territories.31 Paragraph 5
of the Declaration provides:
Immediate steps should be taken, in Trust and Non-Self Governing Territories or all other
territories which have not yet attained independence, to transfer all powers to the peoples
of those territories, without any conditions or reservations, in accordance with their freely
expressed will and desire, without any distinction as to race, creed or colour, in order to
enable them to enjoy complete independence and freedom.
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 rst 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 opposi-
tion 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 qualications to this and jus
cogens rules are not subject to qualications.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-determi-
nation is undoubtedly (emphasis added) part of jus cogens but he concedes that there are
other views, , fn .
[I have left this in but I concede that it is an enigmatic sentence. CW.]
In the second place, as noted above, the exercise of the right of self-determination
has several aspects, one of which is securing the status of a sovereign independent
State, and it is the case that such a right is not a jus cogens right. In other words, the
right in principle to be independent is not a right vested in each and every peoples
or nation, colonial entities excluded. As noted above, there are restrictions on an
unqualied right of independence which are obvious from certain provisions of the
UN Charter. As noted above, Article 1(2) refers to the principle of equal rights and
self determination as a basis for developing friendly relations among nations, the a
contrario interpretation being that if friendly relations among nations are somehow
jeopardised, then the principle of self-determination ought not to be applied, or ap-
plied extremely restrictively. Similarly, Article 55 stipulates that with a view to the
creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on the principle of equal rights and self-
determination of peoples, the UN is obliged to promote [international economic
and social cooperation] and goes on to identify the techniques whereby this can
be carried out, but the latter need not be scrutinised here. It suces to state here
that international peace and tranquillity are in the Charter higher goals than self-
determination.34
Thirdly, every colonial entity or non-self-governing entity has in principle the
right to be independent of the metropolitan power, provided of course there is a
valid expression of a wish for independence by the permanent inhabitants of the
territory in which statehood would be achieved. In other words, metropolitan pow-
ers cannot be heard to claim that granting independence to such entities will lead
to severe international friction and hence it is a proposition which ought not to be
entertained. This is evidenced by the fact that under the Declaration on Principles
of Friendly Relations:
The territory of a colony or other non-governing territory, has, under the Charter of the
United Nations, a status separate and distinct from the territory of the State administer-
ing it; and such separate and distinct status under the Charter shall exist until the people
of the colony or non-self governing territory have exercised their right of self-determina-
tion in accordance with the Charter, and particularly its purposes and principles.
c The Essential Requisites of Self-Determination

The following constitute objectively veriable requisites for the exercise of the right
of self determination:
i. A denite entity which qualies 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].
ii. A denite claim, linkage or occupation of the peoples with a core tract or tracts of
territory;
iii. A denite, pronounced wish for self-determination as described above in the vari-
ous forms of self-determination (and which may, perhaps, now be formulated as a
response to the deprivation of fundamental political and human rights);35
iv. Serious, sustained and substantial evidence of the pronounced wish for self-deter-
mination as established or substantiated by way of plebiscite or some other process,
preferably endorsed or supervised by the United Nations;36
v. Where the ful lment of the above conditions is satised, the exercise of the right is
not inconsistent with other principles and purposes of the Charter of the United Na-
tions and of international law in general, including:
a. Being incompatible with other aspects of self-determination, such as dividing
the territory of a people;
b. Following upon or being in the implementation of policies of gross and system-
atic violation of human rights, such as the Bantustan policy of South Africa and
the UDI of the authorities in Southern Rhodesia;
c. Carrying a threat of destabilisation of a region by compromising the territorial
integrity of a state or states, such as the Kurdish claims to a state on the terri-
tory of several states in the region;
d. The establishment of puppet state or dependent authorities following a use of
force, such as Manchukuo or the Turkish Republic of Northern Cyprus.37
d 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 Dji-
bouti 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 , Interna-
tional Law Reports , , .
[I nd 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].
was no suggestion that Serbia had abandoned its title or was otherwise estopped
from asserting it.
ii. The territory of Kosovo was of great historical signicance to the Serbian people and
formed an integral part of the idea of Serbian nationhood, by reason of its historical
connotations and its continued signicance to the Serbian Orthodox Church.
iii. There was an established sense of group identity of the Kosovar Albanians which
had been reiterated with great vehemence in the light of active Serbian hostility to
the Kosovars, following the death of Tito and the disintegration of the SFRY. The
sense of identity had been strengthened by the post-Second World war movements
of Albanian Kosovars from the rest of Serbia to Kosovo and of Serbs from Kosovo
to elsewhere in Serbia. It was heightened even further by discrimination against and
ill-treatment of Kosovars by Serbs, especially after Miloevis intervention in 1989
and associated changes in the formal status of Kosovo within the SFRY.
iv. There was an historic link between Albanian Kosovars and the territory of Kos-
ovo, even if the demographic changes had altered the balance between Kosovars
and Serbs there. In Yugoslavian constitutional terms and in Serbian political dia-
logue, the Kosovars were not, though, a people entitled to an enhanced status of
autonomy, like the people of the Federal Republics, but were part of a foreign nation
Albanians and, as such, (only) a minority in Serbia.38
v. The Kosovars, though, did consider themselves a people (peoples), entitled to inde-
pendence from Serbia and the two political parties which formed the new coalition
Government in February 2008, the Democratic Party of Kosovo and the Democratic
League of Kosovo, had always been publicly committed to independence from Ser-
bia.
vi. The Kosovars had waged a guerrilla war against the Serbian authorities since 1996,
partly in defence of the Kosovars against violence from the Serb authorities and
partly in pursuit of independence. The insurrection was vigorously resisted by the
Serbian authorities, who refused to countenance independence for the territory of
Kosovo, to which they attached such political and cultural signicance.
e 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 Commis-
sion did not regard the Kosovars has having a right of self-determination. Professor
Kaikobad did not go on to consider the matter of remedial secession in any detail (and
and the ICJ in the Advisory Opinion not at all), but see my postscript on the Advisory
Opinion below. CW].
inconsistent with the principles and purposes of the United Nations and with gen-
eral international law, especially if it were to be exercised to create a new State of
Kosovo against the wishes of Serbia.
i. Indirectly, the situation in Kosovo resulted from the use of unauthorised armed force
against the Federal Republic of Yugoslavia, March-June 1999. To have given eect to
any claim of statehood following from that unlawful act might have conicted with
the principle of non-recognition of changes brought about by force.40
ii. The existing of a state of animosity, hostility and distrust between Kosovo and Ser-
bia, which aected the stability of the whole region, would be perpetuated by the
existence of a state of Kosovo, consequent upon the deprivation of Serbias title to its
territory.
iii. Furthermore, a successful bid for independence by the Kosovars would be taken as
a model and inspiration for other groups aspiring to secede and become another
source of instability. Instances included Hungarian minorities in Romania and Slo-
vakia; the region of Transdniestria in Moldova; the Karabakh mountain region be-
tween Armenia and Azerbaijan; and possibly Vojvodina in Serbia itself.
iv. Major power involvement had had decisive eects on the situation in Kosovo, not al-
ways in a consistent way, either in terms of unity of the major powers (NATO states
were strong proponents of a separate state of Kosovo, Russia was the strongest sup-
porter of Serbia in resisting this) or in terms of consistency from dispute to dispute
(NATO states resisted independence for Abkhazia and South Ossetia from Georgia,
whereas Russia was a rm supporter of these enclaves and recognised them as states
after the ghting in 2008). The prevalence of double standards on the status of se-
cessionist entities created uncertainty and left space for the vagaries of politics on
matters fundamental to the peaceful ordering of international relations. Conceding
statehood to Kosovo would be presented as manifestly a politically inspired event,
which others, seeking to rely on similar demonstrations of political and military
force would seek to emulate.41
v. There are questions about the long term viability of Kosovo.42 Its economy is weak
and, though it aspires to closer relations with the European Union and ultimately to
become a member, the disputes about Kosovos status would not make this process
a straightforward one. It is geographically disadvantaged because of its land-locked
[I am surprised that he puts the matter so mildly, given the strength of his view that
unlawful resort to force may not result in changes of status or title to territory. CW].
[He referred here also to the Turkish Republic of Northern Cyprus and the Serb areas of
Croatia and Bosnia-Herzegovina but with no indication of how he was intending to use
them in his argument. CW].
This situation was acknowledged in the Report of the Special Envoy of the Secretary-
General on Kosovos future status, UN Doc. S// ( March ) which pro-
posed supervised independence for Kosovo and the Comprehensive Proposal for the
Kosovo Status Settlement (The Ahtisaari Plan), UN Doc. S// Add. ( March
).
situation a circumstance which, combined with its ethnic links, may make it dicult
for Kosovo to maintain de facto independence, whatever the position de jure.43
vi. The possibility of further ethnic cleansing within Kosovo on both sides cannot be
discounted. The capacity and willingness of the Kosovo authorities to protect Ser-
bian religious sites is not certain. The return of refugees and displaced persons as
envisaged by Security Council resolution 1244 is proceeding only by the slowest in-
crements.44 For these reason, the capacities of the Kosovo authorities will have to be
supplemented by external forces (EULEX and KFOR), capable not only of enforcing
proclaimed standards but of having an independence which might secure the con-
dence of all sides.
vii. Although the Ahtisaari Plan and the UDI refer to the situation Kosovo as sui generis,
it will be impossible to prevent for other aspiring secessionist groups from identi-
fying their own situations with that in Kosovo and in having some states at least
accepting their claims and recognising them. It is particularly concerning that situ-
ations brought about by unlawful uses of force may gain legitimacy by the passage of
time brought about by the obduracy of those who stand to gain from the illegal act.
viii. Most seriously, the UDI does not appear to be compatible with Security Council
Resolution 1244, which all parties agree is still in force. The resolution provides only
for an interim solution to the situation in Kosovo and, manifestly any nal solution
requires the imprimatur of the Council. Furthermore, the Provisional Institutions of
Kosovo which participated in the UDI are creatures of Security Council-mandated
organs (principally UNMIK), which could not confer on them powers incompatible
with resolution 1244, as the UDI is in seeking to establish a nal solution to Kosovos
status unilaterally and contrary to the territorial sovereignty of Serbia. The concern
here is, in common with the unauthorised bombardment of Yugoslavia in 1999, that
the NATO states remainder the Security Council when it will not bend to their will.
It is, of course, an attempt to circumscribe the eect of the veto and is contrary to
the law of the United Nations.
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 unilat-
eral act or result from a decision of the Security Council. In the rst case, it belongs
to the law of state responsibility;45 in the second, it results from the discharge of the
Councils 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 specic commitment to the same eect.
SC Res. , UN Doc. S/RES/ ( June ), para .
ICJ paras - ( June); ILC Articles on the Responsibility of States for Inter-
nationally Wrongful Acts , Article ().
tion of states.46 Though non-recognition need not be conned 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 un-
lawful 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 nd an obligation
of non-recognition in treaties.48 In the absence of specic treaty obligation, there is,
of course, nothing to preclude a state from adopting its own policy of not recognis-
ing 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. There has been a breach of a major fundamental principle of international law, but
not necessarily of a jus cogens rule).
ii. The breach has resulted in the creation or perpetuation of some sort of territorial
regime, situation, rights or institution;
For practice, see James Crawford, The Creation of States in International Law (Second
Edition, (Oxford: Oxford University Press, ), - and -.
Arnold McNair, The Stimson Doctrine of Non-Recognition, British Yearbook of Inter-
national Law () and generally, Robert Langer, Seizure of Territory (Princeton:
Princeton University Press, ).
For example, Article (), UN Convention on the Law of the Sea, claims of
sovereign rights in the International Seabed Area.
[These last couple of sentences are my interpolation. Professor Kaikobad had, it seems, a
narrower idea in mind or, perhaps, this more restricted notion was all he needed for the
present discussion. CW].
iii. The breach itself might have been the responsibility of a state, an international or-
ganisation, an entity claiming to be a state or all or some of them; exceptionally, the
breach may also be carried out by other non-state, non-governmental organisations
and corporations.
iv. The territorial rgime must be created, perpetuated, maintained or sustained di-
rectly or indirectly by entities identied in (iii) above
v. Non-recognition may be an individual act or response by other state(s) or follow
upon a decision of an international organisation.
vi. A policy of non-recognition may be implemented by an international organisation
with respect to matters which lie within its competence.
c Breach of Principles of International Law50

Some of the breaches of international law which suce to generate a non-recogni-
tion 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 State-
hood 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 eect 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/ ( Au-
gust ).
For example, the European Court of Human Rights, Loizidou v Turkey (Merits), []
No./, para. .
tional organisations not to recognise the annexation directly or indirectly.54 The Se-
curity Council did not condemn Iraqs invasion as aggression, although it recognised
Kuwaits right to self-defence in Resolution 661. The annexation was not recognised
by any state and courts in some states refused to take cogniscance of acts of the Iraqi
authorities in Kuwait, relying on the Security Council decisions rather than general
international law.55
Whether or not a use of force was lawful, the assumption of control of territory
of another state is governed by the law of belligerent occupation and the status of
occupied territory may not be determined by the occupant unilaterally. Thus, the
Security Council decided not to recognise the alteration of the status of East Jeru-
salem (its annexation and incorporation into Israel) and called upon states to accept
this decision.56
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 dicult to compress into a single prin-
ciple. 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 conrm 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
).
violations and, of course, implying that the title to that part of its territory of the pre-
ceding sovereign would be lost or invalid. For all the vehemence with this claim has
been made, with the exception considered immediately below, there are no examples
in practice to support it.
The exception is governmental systems in which a racial minority exercises po-
litical power within the state in a way which this discriminates against the majority
denied access to political power. Apartheid, as it was practised in southern Africa,
is the paradigm. The extension of the essence of the apartheid system to Namibia
(South West Africa) resulted in action by the Security Council against South Africa
and led to the Namibia Advisory Opinion by the ICJ, which laid down elements of
the non-recognition obligation based on general international law, as well as the
Councils decision. The racially discriminate system of the UDI authorities which
took power in Rhodesia in 1965 belongs to the same class. As far as the latter was
concerned, the Security Council determined that the UDI was without legal eect
and called upon all States not to recognise the Southern Rhodesian authorities or to
have any diplomatic or other relations with it.59
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 non-
recognition 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 reac-
tion 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 Rhode-

sia was doubly vulnerable the UDI authorities were a racial minority under a constitu-
tion 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 (Tran-
skei), UN Doc. A/RES// ( October ). The Security Council later supported the
Assemblys call to states not to recognise the Bantustans or have dealings with them.
None did.
The curtailment of South Africas participation was the result of a presidential ruling on
the eect 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,
was a response of sorts not dissimilar to the operation of non-recognition (but here
of the government, not the state itself). The political aspects of the situation were so
overwhelming that it is impossible to discern from this single case a clear under-
standing of states that a legal obligation to act as the Assembly did was involved.
In what might seem to be a clearer case, the suspension or expulsion of a state as a
response to the serious violation of the law, it is harder to see the positive action that
this would involve the application of the non-recognition principle. Furthermore,
there are no instances of either of these processes involving the UN. The constitu-
tional instruments of international organisations ordinarily refer to the suspension
of expulsion of states, rather than the denial of privileges to governments.
What is clear, though, is that there are legal factors involved in the non-recogni-
tion principle, as there are, of course, in relation to statehood and title to territory.
This raises the possibility of international legal proceedings 62 to determine the mul-
tiple questions which might arise in a single instance where the non-recognition
principle is invoked. In contentious cases, the ICJ has decided cases involving al-
legations of serious breaches of fundamental rules of international law.63 It has also
taken on questions of statehood and identity, recently not entirely with coherent
outcomes.64 The ICJ made vital remarks about the non-recognition principle in the
Namibia Advisory Opinion.65 On 8 October 2008, the General Assembly referred
the matter of the UDI of Kosovo to the ICJ for an advisory opinion.66
It is not possible here to investigate unilateral practice on non-recognition, where
considerations of policy have quite as great an impact as matters of legal obligation,
save to draw attention to one possibility open to a state which nds itself the vic-
tim of acts of other states which recognise situations that it regards as unlawful (or
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 geno-
cide see Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ ( Febru-
ary).
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 Appli-
cation 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 par-
as.- ( June).
GA Res. /, UN Doc A/RES// ( October). See below.
to which are political anathema to it). The chief examples of this phenomenon are
the Hallstein Doctrine as practised by the government of West Germany, follow-
ing which the government would not maintain diplomatic relations with any state
which recognised East Germany. The policy was followed from 1955 until 1970, as a
political practice rather than as the response to a breach of any legal obligation by
the recognising state. Although complicated by uncertainties about the exact claims
made on either side, the attitude of China to Taiwan is another example of a state
seeking to use its political resources to maintain its own position over the status of
a piece of territory. China has terminated its diplomatic relations with states which
themselves have elevated their own relations with Taiwan to a diplomatic level or
which have entered into relations with Taiwan (such as the supply of arms) of which
China disapproves. Again, this is a political exercise, though China does base its
claims on having legal title to the whole of the territory of China, including Taiwan,
thus making the establishment of diplomatic relations a breach of its rights. Here,
though, China is claiming that other states should not recognise Taiwan or establish
diplomatic relations with it because it does not have the characteristics of statehood,
not because there is some imperative of non-recognition following from a breach of
a fundamental rule of international law.67
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-recog-
nition. The obligation to commit to a policy of non-recognition is based on one or
more of the following:
i. 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.
ii. Treaty based obligations such as Article 11, Montevideo Convention 1933 or appro-
priation of part of the common heritage of mankind (Article 137(3), UNCLOS).
iii. Measures required by the Security Council, such as those following the Iraqi inva-
sion of Kuwait.
f 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 identiable 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 rst 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].
representatives claimed a right to statehood. There had been breaches of some major
rules of international law which aected the legal and factual situation in Kosovo
on this date. Armed force had been used against Yugoslavia by NATO states, con-
trary to international law and had resulted in the withdrawal of Serbian forces from
Kosovo and the beginning of the interposition of international forces there. The fu-
ture mandate of these forces was governed by Security Council Resolution 1244,
which regularised their presence for the future but the resolution was silent about
the use force before it was adopted. The references to Serbias continuing sovereignty
over Kosovo in Resolution 1244 and its annex follow upon the resort to force against
Serbia by the NATO states, as did Serbias acceptance of the terms of Resolution
1244 and the presence of KFOR troops on its territory. The armed action by NATO
against Yugoslavia had been prompted by serious war crimes and human rights vi-
olations committed in Kosovo, predominantly by Serbian forces against Albanian
Kosovars (though not without some similar activity by Kosovars against Serbs in
Kosovo). Criminal proceedings were brought at the ICTY against defendants from
both sides, some of whom were convicted of oences within the jurisdiction of the
Tribunal (not including genocide).69
Ordinarily (i.e. in the absence of Resolution 1244), the question of Kosovos state-
hood would have been assessed in the light of the ordinary criteria of statehood,
in particular, whether or not the secessionist authorities had been able to make ef-
fective their claim to be independent as against any contrary claim by the original
sovereign. Participation by a foreign state in securing any eective control in the se-
cessionist territory would usually be enough to prevent the acquisition of statehood
(because of the necessary interference with the territorial rights of the sovereign),
save where there was consent by the previous sovereign, a fortiori if the intervention
was a use of force. It is possible that two versions of the right of self-determination
might inuence the application of the ordinary law. Kosovo might say that it had a
right of external self-determination (say, under the Badinter principles which ap-
plied to the disintegration of Yugoslavia) or that it had a right of remedial secession,
given the severity of the human right violations by Serbia, violations which were
likely to continue if Serbian sovereignty were restored.70 Further, it could have been
said that the external presences in Kosovo were not unlawful interventions (as in-
deed they were not), so that any control acquired by the Kosovar authorities as a
result of these interventions could contribute to the establishment of statehood. The
argument needs a further step Resolution 1244 was admittedly still in force but
it provided only for an interim solution to the status of Kosovo: what was claimed
here by the Kosovar authorities was a nal solution (not expressly excluded by 1244
(of course!)).
For Resolution 1244 might have been seen to have the directly opposite eect.
So long as it remained in force, there could not be any nal solution to the status
of Kosovo. What is more, any organs and forces established or authorised by the
Milutinovic, ICTY IT-- ( February ); Haradinaj, ICTY IT-- ( April

).
This claim was made only as a political argument by the Kosovars.
Security Council were entitled to act only in ways compatible with Resolution 1244.
These bodies of limited competence included the Provisional Institutions of Self-
Government of Kosovo, the bodies which appeared to have issued the UDI71 and
which certainly appealed to their elected status under the operation of Resolution
1244 as the source of their legitimacy.72 There is an even broader consideration
could the Security Council have lawfully conferred upon bodies it created the power
to deprive a member of the United Nations of part of its territory?
It is not possible here to answer these questions in full detail but simply to reiter-
ate the conclusion set out above (under the umbrella of which fall all the other issues
to be decided), that, so long as Resolution 1244 remains in force, there are interim
arrangements for the status of Kosovo in place under a resolution which is binding
on all States. While this resolution is not expressly directed to the Provisional In-
stitutions73 (which were not in existence when the resolution was approved), those
institutions were created by bodies established under 1244 and could not be given
powers to act incompatibly with the terms of 1244, which provided only for autono-
mous self-government for Kosovo and not for Statehood. The consequence is, to the
extent that the Provisional Institutions (bodies with a degree of international per-
sonality) are associated with the UDI, their acts are nullities in international law.74
To the extent that the UDI might be the act of a body or bodies without international
status, it is irrelevant to determining the present legal status of Kosovo. Accordingly,
it could be argued that:
i. there is a duty upon all member states of the United Nations not to recognise Kosovo
as an independent state, at least until the International Court has rendered its ad-
visory opinion, either because the facts which would go to establish statehood have
been established in breach of Serbias territorial sovereignty, at a time when Serbia
had no legal right to defeat these moves or because the bodies which made the claim
of statehood and which supported the Kosovar authorities in making and protect-
ing this claim had no right in international law to do so (because the actions were
incompatible with resolution 1244);75
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 qualication because the UDI, whether lawful or not, is not deter-
minative 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].
ii. Those states which have recognised Kosovo as an independent sovereign State (then,
69 member states) are in breach of international law insofar as they have intervened
in the internal matters of Serbia.76
5 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, there-
fore, necessarily limited by it, however exible the approach brought to the inter-
pretation 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 re-
mains 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 after-
math 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 self-
determination in dicult circumstances, such as Namibia and East Timor. If the
Council were of one view, it would be able to make determinations about the nal
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 Serbias
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 ve States recognised the
statehood of Biafra while Nigerian was still making eorts to assert its own authority.
Nigeria objected to these acts of recognition. See Ijalaye, Was Baifra at any time a
State in International Law? American Journal of International Law (): .
Danesh Sarooshi, The United Nations and the Development of Collective Security (Ox-
ford: Clarendon Press, ), Chapter ; Erika de Wet, The Chapter VII Powers of the
Security Council (Portland: Hart, ), Chapter .
Rudolph Bernhardt, Article , in The Charter of the United Nations, ed. Bruno Sim-
ma, Second Edition, (Oxford: Oxford University Press, ), -, para..
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. 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 disrup-
tion of the territorial integrity of a member state;
ii. 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;
iii. Although the General Assembly and the Security Council have been involved in
various processes and facilitation of entities towards self-determination or self-gov-
ernment, 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 them-
selves with creating states out of post- or non-colonial/mandate/ trusteeship self-
determination situations, Eritrea notwithstanding.
iv. Furthermore, if the Council were to endorse statehood for Kosovo, it would consti-
tute legitimising a territorial situation resulting from an unlawful use of force.
6 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 constitu-

tional 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 fed-
eral body to being part of Serbia. There is little dispute about the territorial limits of
Kosovo. Furthermore, the Badinter Commission recognised the importance of self-
determination 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.
evidence of the wish of the peoples of Kosovo for independent statehood. That state-
hood, the UDI asserts will be of a multiethnic entity with full protection against the
international standards dictated in the Ahtisaari Plan for individuals and minorities
within the State. This unilateral commitment might be relied upon by any state later
concerned that Kosovo was not living up to the promises in the UDI.
ii. Against this, it would be maintained that the Badinter Commission had considered
Kosovos claim for independence and rejected it because of the insuciency of its
constitutional status in the SFRY. Indeed, the Commission had declared the proc-
ess of change in Yugoslavia at an end. Neither the creation of the new state of the
Federal Republic of Yugoslavia (Serbia and Montenegro) nor the later separation of
Montenegro from that state had been subjected to the supervision of the Badinter
Commission against the standards laid down in the original EU prospectus for post-
SFRY States.
iii. Whatever solution is adopted for the status of Kosovo at present, it would certainly
threaten international peace and security in the region, if there were not a substan-
tial commitment from outside forces to help preserve the peace. Kosovo is too fragile
to survive as a state; Serbia is too strong to be restrained from trying to reassert its
authority de facto that formal commitments and actual force (which required Secu-
rity Council sanction) are essential. Ahtisaari talked of the international supervi-
sion of Kosovos independence, which, arguably, stopped short of statehood in the
accepted sense.
b 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. The rst perambular paragraph of Resolution 1244 rearms to sovereignty of the

Federal Republic of Yugoslavia over the territory of Kosovo. In addition, in discharg-
ing 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.
ii. 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 provi-
sional democratic self-governing institutions for a normal and peaceful life: Resolu-
tion 1244, paragraph 10 and Annex 2, paragraph 5.
iii. Crucially, clear acknowledgment of the fact that autonomy and self-government in
Kosovo was provisional, pending a nal 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
in breach of its obligations to maintain the status quo in terms of sovereignty status
in Kosovo;
ii. By tolerating the assertion and assumption of power by Kosovo authorities, UNMIK
has failed to carry out or abdicated its responsibilities vested in it by Resolution 1244,
the source of all its authority;
iii. The assumption of power by the Kosovo Assembly has seriously frustrated UNMIKs
ability to be the main governing international body, a fact acknowledged by the UN
Secretary-General in his report on UNMIK, June 2008 for the Report of November
2008: paragraph 21 states that the Special Representative is, unable to enforce his
authority.81
iv. Paragraph 19 of Resolution 1244 provides that UNMIK and KFOR shall, after an
initial 12 month period, continue thereafter unless the Security Council decides
otherwise. In the light of paragraph iii above, this constitutes a long term problem
because the international civil presence will increasingly be rendered an anachro-
nism in Kosovo, unable to carry out its functions but with the Council unable to
agree on its termination.
v. UNMIK may well nd itself in all sorts of diculties if the International Court pro-
vides an opinion which states that the Declaration of Independence was/is unlaw-
ful in terms of international law. Although not bound by the opinion, the Security
Council and its bodies can hardly be openly deant and ignore the International
Courts pronouncements which have never been disrespected by the main bodies of
the Organisation.
c 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 estab-
lish interim provisional self government for Kosovo pending a nal settlement. By
failing to prevent to the Declaration of Independence by whatever means available to
it or by not reacting to it with sucient vigour, including perhaps calling for specic
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 Re-
public of Yugoslavia was neither compromised nor prejudiced; it had rearmed the
commitment given by all member states to respect the sovereignty and territorial in-
tegrity 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. .

UNMIK or otherwise, to arrest the development of any situation which would result
or has resulted in Kosovo eectively 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 fu-
ture, tension, hostility and uncertainty will continue to worsen and cause threats to
the peace to become more presing and more serious. Serbias determination to main-
tain 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 conict.
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 pos-
sibly fraught background that EULEX, the EU law and justice mission to Kosovo,
must operate. EULEX has responsibilities for policing, justice and customs neces-
sitated 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 Secretary-
General. 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, nds the extension of its opera-
tions into the Serb-dominated areas of northern Kosovo dicult. EULEXs activities
will consolidate the position of the Kosovo authorities and it will have no diculty
in cooperating with them in most of Kosovo. Its very success, though, may make its
work with Kosovos 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 modied version of it) brought to the end the possibility of a peace-
ful 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-Generals Report on UNMIK to Security Council, UN Doc. S// (

November ), paras. , , .
own sovereignty over the territory of Kosovo remains, at least pro tem. An advisory
opinion that the UDI is not compatible with international law would reinforce its po-
sition (though Serbia would doubtless reject a nding to the contrary as not binding
upon it). Serbia has resisted suggestions that it should try to nd an international fo-
rum to test directly the sovereignty question (and the recognition decisions of those
States which have recognised Kosovo). It is precluded by its own commitments, the
eect of resolution 1244 and perhaps even general international law from using force
to reassert its authority in Kosovo. Its economic alternatives are limited, especially
given that it has similar aspirations to Kosovo about its future economic links with
the EU. It is still the case that only a minority of states have recognised Kosovo and
Serbia will still claim the right to exercise the extraterritorial powers of the state
with respect to Kosovo so long as recognition practice remains as it is it may
have opportunities to do this. What everyone waits for now is the Advisory Opinion
to see if the ICJ is possessed of such wisdom that it can nd in the law the way to
make a positive contribution to preventing the Kosovo situation joining the cata-
logue of frozen conicts which hold so much latent dangers for international peace.
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 am-
bitions. I attach this very short note about the Advisory Opinion, simply to round
things o, 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-Gov-

ernment of Kosovo in accordance with international law?
The identity of those persons or which bodies had made the UDI was a highly contro-
verted matter, on which the Opinion eventually turned, see below.
I was an adviser to the Government of Cyprus in the preparation of its intervention in
the Advisory Opinion. Nothing that I have said in this paper should be taken to repre-
sent the views of the Government of Cyprus and I have not relied on anything not in the
public domain in writing it. Equally, unlike what has gone earlier in this paper, any opin-
ions here are my own and are not estimates of where Professor Kaikobad would have
stood. I do think, though, that he would have shared some of my reservations about the
Opinion.
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 pro-
ceedings, 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 de-
bates 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 ocials 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 Koso-
vo, 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 Courts nd-
ing, which does imply an extraordinary degree of ignorance or misunderstanding
of those states which voted in favour of Resolution 63/3 but I shall not get into this
matter here.87
Once the Court had reached this decision, it seems clear to me that it should have
said very little more. It was quite unnecessary to consider the preliminary questions
about whether or not the Court was competent to answer the reformulated question
and, if competent, whether or not it should have exercised its discretion to decline
to provide the advice sought. The question, as the Court understood it, did not raise
an issue of international law at all and, since it is only questions of international law
which the Court may determine, its role was functus ocio. It ought to have said
only that international law was quite indierent to the accordance or otherwise of
the UDI with international law, since international law did not apply to the act which
was the object of the proceedings. Thus understood, the UDI had no relevance to the
The Opinion was given on July . Since then, at the time of writing, only three
more states had recognised Kosovo, bringing the number that had up to .
Kosovo (Advisory Opinion), ICJ paras.- ( July).
See Vice-President Tomka, Declaration, Kosovo Opinion, paras. -.
status of Kosovo or to the validity of any consequential actions by other States (such
as recognition) or international organisations (such as admission to membership).
Kosovos status would have, as it still does, continue to be a concern of the Security
Council, so long as Resolution 1244 remained in eect (and, to the extent that it was
competent, to the General Assembly). General international law would have gov-
erned any other matters outside the scope of Resolution 1244, in so far as any action
was permissible, taking Resolution 1244 into account.
The Court could not, though, live with its own logic. It did assess whether the
UDI (as a claim of secession) was compatible with general international law. In a
curious reliance on the Lotus principle, it found that there was no rule of general
international law which prohibited the secessionist claim, so that there was no gen-
eral proscription of the UDI.88 Then, the court decided that the lex specialis of the
situation in Kosovo, Security Council Resolution 1244, did not bind the Kosovars
not to act incompatibly with its terms, so that the UDI was in accordance also with
the particular legal rgime which applied to Kosovo, again, in accordance with a
law which did not apply to it. The Court made no attempt to explain the limits of
its original determination of the identity of the authors of the UDI, nor to explain
that anything they said (or, indeed, that the Court said) could have no bearing on
the status, especially the statehood of Kosovo. Of course, the Kosovars said that the
nding of accordance meant that the claim to statehood in the UDI was lawful by
international law and some states which had recognised Kosovo as a state claimed
legal sanction for their actions on the basis of the Advisory Opinion.
There is something of a hiatus in the Opinion, for the Court acknowledges that
particular UDIs have been condemned by the Security Council (though not Koso-
vos, of course). The Court puts entire emphasis on the decisions of the Council,
while at the same time pointing out that the situations in which the Council had
acted involved, egregious violations of international law, rather than their unilat-
eral character. However, neither the norms on which, egregious violations of in-
ternational law, are founded, nor the establishing of any violation is a matter on
which the Council speaks with authority but assuming coincidence of the Coun-
cils position and a proper analysis of the law, then it would seem that the acts of
non-state actors might sometimes be susceptible to assessment against international
legal standards.89 However, when it came to assessing the conduct of the authors of
the UDI against the provisions of Resolution1244 and decisions taken under its au-
Kosovo Opinion, paras. -. Of course, as, at the time of the UDI, a non-state actor or
actors, the authors of the UDI did not benet from the Lotus principle. The Opinion is
unsophisticated on the legal categories applicable not only rights and duties but also
privileges and validity of legal acts were relevant to a full examination of the issue before
it, see partly, Judge Simma, Declaration Kosovo Opinion.
The Security Council has declared acts of non-state actors without legal eect in cir-
cumstances where it is not possible to trace their de facto capacity to act back to a state
responsible for a breach of international law, e.g. the UDI authorities in Rhodesia, SC
Res. , UN Doc. S/RES/ ( November ); (cf. Turkish Republic of Northern
Cyprus, SC Res. , , UN Docs. S/RES/ ( November ) and S/RES/ (
May ).
thority, the Court found that, acting in their unocial capacity, the Kosovars were
not the object of any part of the Security Council Resolution and that their collective
powers were not inhibited by it.90 The Court invoked the absence of any response by
the SRSG and UNMIK to the UDI. It is a good question why there had been none
and it is testimony to the utterly undeveloped public law of international organisa-
tions that there is no avenue of accountability of the Resolution 1244 organs for the
performance of their functions.
The Court did not make any remarks about the sui generis nature of the Kosovo
situation, to which the UDI refers and about which several intervening states made
much of, which makes it even more likely that the Opinion will be called in aid by
other secessionist groups and their supporters. Nor did the Court have anything
to say about self-determination, especially remedial secession, which had gured
prominently in the submissions to it. This was perhaps as well because more and/or
dierent states might have chosen to intervene if it had been clear that this was an
issue which the Court was going to address.
In the light of the insignicance of the nding of the ICJ in the advisory opinion
after full submissions and hearings on the merits, it would be worth considering
whether to introduce into the Courts procedures for determining advisory opinions
an option similar to that for preliminary hearings in contentious cases.91 It was clear
after the rst round of written submissions that the authors of the UDI and several
states took the position that the General Assembly had asked the wrong question
(or that the question which it had asked was based on a misconception). That was
the time at which the matter ought to have been resolved. Not only the interests of
judicial eciency would have been served if this possibility had been available but
it might have been the case that the true purport of what the Court had decided
would have been apparent and the potential for its misrepresentation would have
been limited.
It bears repeating that the Advisory Opinion has nothing to say about the legal
status of Kosovo or about the legal characterisation of states which had recognised
Kosovo as a state before the Opinion was given.92 It is hard to see what the Assembly
could usefully take from the Opinion. Its resolution at the end of the 64th session
commends Serbia and the Kosovo authorities to further negotiations but, while both
seem willing to talk indirectly, neither is willing to take part in any process which
would undermine its fundamental position.
Kosovo Opinion, paras.-. The most obscure parts are in paras. and , where
the Court says that the authors of the UDI did not intend to operate within the legal
order provided by Resolution but outside that order [where, then?] and that reso-
lution and the UDI operate on dierent levels [dierent levels?].
See Anthony Aust, Advisory Opinions, Journal of International Dispute Settlement
(): -.
This conrms the reservations which some states expressed in the debate in the Gen-
eral Assembly of the request for the Advisory Opinion about the utility of doing so,
but for quite dierent reasons than then imagined, e.g. United Kingdom, A//PV. (
October ), and .
Chapter 3 From Province to Protectorate to State:
Sovereignty Lost, Sovereignty Gained?
MORAG GOODWIN*
1 Introduction
The province of Kosovo 2 million people in 11,000 square kilometres of territory
nestled between Serbia to the North and Albania and Macedonia to the South
was thrust into the international limelight when Serbian actions to repress Kosovo
Albanian calls for autonomy made it a subject of international concern at the end of
the 1990s. Although Kosovo claimed independence in September 1991, the Badinter
Commissions insistence on maintaining the existing borders of the federal repub-
lics of the dissolving Yugoslavia suggested then that the topic of Kosovo was likely
to depart the international agenda as quickly as it had arrived.1 Yet while Kosovo is
not unique in becoming well-known for suering the repressive actions of a parent
state, and while it has not even enjoyed the distinction of being the only territorial
administration of its time,2 its potential impact on the fundamental doctrines of
international law means this small would-be state has found itself at the centre of
international legal concerns for over a decade.
On a number of levels, the international communitys response to the situation
created by Miloevis actions and NATOs intervention threaten to call pillars of
the post-World War II order into question. For example, while it remains too early to
come to any conclusion on whether NATO action in Kosovo sans Security Council
approval in some measure paved the way for an emerging doctrine of humanitarian
intervention, it seems not implausible to suggest that the apparent success of unau-
thorised military intervention in Kosovo in stopping mass human rights violations
* This chapter is a revised and much extended version of a paper published in the German
Law Journal Special Issue, What Future for Kosovo? (). That paper benetted
considerably from the comments of Bernhard Knoll, Jason Beckett and Euan MacDon-
ald; my thanks to them again.
Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. ,
January ; International Legal Materials (): .
See Bernhard Knoll, The Legal Status of Territories Subject to Administration by Inter-
national Organisations (Cambridge: Cambridge University Press, ) for an overview.
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
Kosovos nal 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 Ko-
sovo 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 Kosovos nal
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 negoti-
ated 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 uni-
lateral declaration of secession by reference to Serbias 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 nal status that
the political process authorised by the resolution was intended to determine was in
fact pre-determined by the Council, i.e. that nal status was actually code for inde-
pendence. 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 Resolu-
tion excluding independence. Discussed in Warbrick, note above, . Such an
interpretation is clearly based upon the Lotus principle, that restrictions on the inde-
pendence of States cannot be presumed; The Lotus Case, , PCIJ, Series A, No. ,
( September).
For example, Frances 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? 89
If SC Resolution 1244 did not resolve the status of Kosovo, and given the ab-
sence of both a follow-up resolution and Serbian consent, how is it that a third of
the international community,6 as of September 2010, believe Kosovo to have gained
independence? In other words, what mechanism or power within the international
legal order exists that can sever Serbias sovereign rights over the territory of Kosovo?
2 Sovereignty Lost?
In adjudicating upon the claims that came before it in the early 1990s, the Badint-
er Commission relied heavily upon the principle of uti possidetis in determining
which entities had the right to self-determination and which did not. Although their
pronouncements were not without controversy,7 the members of the Commission
armed the continuing relevance of uti possidetis to the post-colonial order and
thereby the centrality of the principle of territorial integrity. Their assumption has
been supported by the Court in the Kosovo case. It is a (more or less) settled point of
international law therefore that for borders to change, the agreement of all parties is
necessary.8 However, the numerous statements recognising Kosovan independence
in response to the Declaration of Independence have studiously avoided the issue of
the severance of Serbias sovereign rights.9 Yet if those states that have recognised
the Republic of Kosovo are not to have breached international law in the act of pre-
mature recognition, they need to advance a legal account of how it is possible that
Serbia has forfeited its sovereignty.10 This section considers possible legal grounds for
the loss of sovereignty.
As of November , states have recognised Kosovo as an independent and sov-

ereign state; a list of recognising states is available at the Kosovan Ministry of Foreign
Aairs website. Accessed November . http://www.mfa-ks.net/ For links to the
statements of recognition, see, accessed September . http://www.kosovoth-
anksyou.com. This is an unocial website and not all the links function.
See Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Un-
ion, 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 Uni-
versity 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 af-
fect 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 fea-
ture 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 Uni-
lateral Declaration of Independence by the Provisional Institutions of Self-Governance
of Kosovo, Verbatim Record, Wednesday December , CR /, para (Ger-
many); for Wednesday December , CR /, para. (France) and para.
(Jordan); and for Thursday , December , CR /, paras. , and (UK).
There are a number of paths one could take to make the case for a loss of sover-
eignty; three shall be considered here. The rst is that of the purported right of self-
determination belonging to the people of Kosovo. The second relates to the principle
of eective control. The third concerns the powers of the Security Council. None,
I shall argue, is particularly convincing. The section will nish by looking briey at
other grounds put forward in the proceedings before the Court. They, too, I will sug-
gest, are unpersuasive.
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 rmly established in the international legal lexicon. It has
been repeatedly rearmed 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 self-
determination in one of three ways, according to the Declaration on Friendly Rela-
tions: free association with a State, integration with a State or emergence as a sover-
eign independent State.
The diculty is in interpreting self-determination beyond the post-colonial con-
text.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 de-
termine their political status and freely pursue their economic, social and cultural de-
velopment.
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 ).
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, -.
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 peo-
ple, the right to self-determination as independence is thus not applicable. This is af-
rmed 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 ar-
gued 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 Dec-
laration, states fail: to conduct themselves in compliance with the principle of
equal rights and self-determination of peoples [being] thus possessed of a govern-
ment 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 fall-
ing 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 Miloevis 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 Island-
ers 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 eective guarantees.22 The Canadian Supreme Court ap-
peared 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 dif-
ferent language, in the Vienna Declaration. United Nations World Conference on
Human Rights, Vienna Declaration and Programme of Action, June, International
Legal Materials (): .
See for example the Dutch statement before the ICJ: ICJ Public Hearing on the Ac-
cordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Thursday
December , CR /.
Bartram S. Brown, Human Rights, Sovereignty and the Final Status of Kosovo, Chi-
cago-Kent Law Review (): , citing Commission of Rapporteurs, The Aaland
Islands Question, League of Nations Doc. B [C] //, April .
Reference re. Secession of Quebec, note above.
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 justied secession as a last resort.24 The Courts hesita-
tion reected 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
Miloevi regime lacked the will to ensure just and eective guarantees, but it
seems dicult to reach the same conclusion in respect of the democratic govern-
ments in oce 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 guaran-
tees on oer 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 dierent out-
come.27 Moreover, the smooth functioning of the central governments relationship
with the autonomous province of Voivodina attest to a Serbian regime able and will-
ing to ensure eective 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 provoca-
tion 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-Determina-
tion in the st Century: Modern Perspectives on an Old Concept, Israeli Yearbook on
Human Rights (): .
See, for example, Judge A. A. Canado Trindade, Separate Opinion, Kosovo Opinion,
para. ; available at http://www.icj-cij.org/docket/ les//.pdf Moreover, the
recent compromise by Serbia in the UN General Assembly in response to the ICJ Ad-
visory Opinion suggests again a country unlikely to repeat the abuses of the past. See
meeting records for plenary discussion, UN Doc A//PV. ( September ).
See, Montenegro gets Serb recognition, June , http://news.bbc.co.uk//hi/
europe/.stm.
Moreover, such an autonomous regime is accepted by the majority of the Serbian popu-
lation as evidenced by the recent referendum in support of the new constitution, which
includes several articles guaranteeing self-rule for, as well as minority and human rights
within, Voivodina. See Serbia backs draft constitution, October . Accessed
October . http://news.bbc.co.uk//hi/europe/.stm.
See the statement before the Court by Sir Michael Wood on behalf of the authors of the
Declaration; ICJ Public Hearing on the Accordance with International Law of the Uni-
lateral Declaration of Independence by the Provisional Institutions of Self-Governance
of Kosovo, Verbatim Record, Tuesday December , CR /, para. .
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 Miloevi 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 suering oppression at the hands of central authorities. Even where one
limits the argument to abuses that are still within living memory (and thus dis-
counts those collective memories of oppression that have passed down the genera-
tions to form an integral part of a groups 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-de-
termination.34 The peace and security that is the prime purpose of the international
order, and which many suggest is the underlying justication for Kosovos independ-
ence, 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 Provision-
al Institutions of Self-Governance of Kosovo, Verbatim Record, Wednesday December
, CR / , para. . This argument was accepted by Judge Canado Trindade,
note above.
Despite the abuse and mass killing of Kurds in the north of Iraq, the territorial integrity
of Iraq has been repeatedly a rmed by the Security Council whenever it has taken ac-
tion on Iraq and no State has suggested that a threshold of abuse has been crossed in
this case. See, e.g. SC Res. , UN Doc S/RES/ ( March ) or SC Res. , UN
Doc SC/RES/ ( October ).
See, for example, the argument of the German government before the Court: Kosovo is
not a precedent. The case is specic and unique. ICJ Public Hearing on the Accordance
with International Law of the Unilateral Declaration of Independence by the Provision-
al Institutions of Self-Governance of Kosovo, Verbatim Record, Wednesday December
, CR / , .
For a helpful consideration of Kosovo as special, see Warbrick, note above, -.
Without referring to the violence meted out to the Serbian minority, the of the popu-
lation comprised of other groups, such as the Roma, have suered terrible abuse and
continue to suer violations of their basic rights. In this regard, see Claude Cahn, Birth
of a Nation: Kosovo and the Persecution of Pariah Minorities, German Law Journal
(), .
transitional justice and to the UN-sponsored reconciliation eorts within societies

that have torn themselves apart.35
It seems, then, that there would be no solid basis for viewing the people of Kos-
ovo as entitled to self-determination, neither in possessing the right to self-determi-
nation 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 argu-
ably 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 Serbias territorial rights by means
of a loss of sovereignty concerns the principle of eectiveness.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 states own inviolability, the rights of other states and their
nationals rights under international law.37 The doctrine of eective control is further
reected in the third of the four criteria for statehood laid down in the Montevideo
Convention (1933), that of eective government.38 If the fact of sovereignty lies in its
performance, where a state cannot over a period of some (considerable) time exer-
cise eective 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 Reections, Third
World Quarterly (): .
Although the doctrine of eective control was not mentioned specically by any of the
states that appeared in the ICJ proceedings, reference to the ideas it represents arguably
made an appearance in the frequent references to the facts on the ground. See note
above.
Island of Palmas (Netherlands v. US), Reports of International Arbitral Awards ():
.
These four criteria a clearly dened territory, a population, eective government and
the ability to enter into relations with other States have long been held to reect cus-
tomary international law in this area. Montevideo Convention on Rights and Duties of
States (), Article , League of Nations Treaty Series : .
Emmerich de Vattel, The Law of Nations or the Principles of Natural Law, vol. (),
; Hugo Grotius, De Jure Belli ac Pacis, volume II, Chapter III, s...; cited in Malcolm
For the past decade, eective control over the territory of Kosovo has been exer-
cised not by Serbia but by an international administration guaranteed by the NATO-
led KFOR force. Although eective control in principle refers to the inuence of
other states in undermining eective control, the international administration in
Kosovo is arguably of such a far-reaching nature that it could be understood as sever-
ing Serbian title.40 Under the authorisation of Security Council Resolution 1244, the
United Nations Mission in Kosovo (UNMIK) assumed all legislative and executive
control, including the task of the administration of justice, and was also empowered
to take control of and utilise all nancial assets of the province. UNMIK raised taxes
and issued stamps for use in the postal service it ran; it changed the currency and
replaced the Serbian ag and all symbols of Serbia with UN regalia; it controlled the
borders, issued identity documents and entered into agreements with States.41 Ser-
bias exercise of sovereignty was further reduced by the Constitutional Framework
for Provisional Self-Government, declared in May 2001, which saw responsibilities
in the areas of economic policy, trade, customs, education, health, the environment,
agriculture and infrastructure transferred to Pristina-based institutions.42 The de-
gree and range of governance exercised by UNMIK was such that it is possible to
argue that the international administration created of the province a form of non-
self-governing territory; such a conclusion with the attendant consequences for
consideration of whether self-determination was applicable or not43 would make
the step to protectorate the crucial stage in passing from province to state. Finally, in
the 18 months since independence was declared, it can be argued that Serbia has had
little eective control, if any, over daily life in Kosovo. This last point that of a lack
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 rst 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, eective control, strictly speaking,
arguably refers less to the ability to assert ones authority than the ability to assert ones
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 eect non-self-governing territories may constitute a special category to which self-
determination applies. As possible examples for this category, he cites Kosovo, Bangla-
desh and perhaps Eritrea. See Crawford, note above, .
of eective control in the months following the Declaration featured in a number

of submissions before the Court.44
While eective control is not always persuasive in determining where sovereign-
ty lies from the moment of its unilateral declaration of independence in November
1965 until the fall of the minority regime in 1979, Ian Smiths government of South-
ern Rhodesia exercised eective control over the territory to the exclusion of all
other powers and yet failed to gain recognition as a state45 the doctrine of eective
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 enti-
ties in the region that could not at the time be understood as having achieved eec-
tive 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 pre-
mature recognition of Croatia and Bosnia-Herzegovina in 1992 and 1993 respectively
reected 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 crite-
ria, the rush to recognise nonetheless reected, 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 govern-
mental 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 admin-
istration to cause Serbia to lose title would be unprecedented. Nowhere has an inter-
national 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 In-
donesia following the Portuguese withdrawal; its independence was arguably one
of the last cases of colonial self-determination. And the most analogous situation,
This is reected in statements of the inability to turn back the clock. See, for example,
the statement by the UK; ICJ Public Hearing on the Accordance with International Law
of the Unilateral Declaration of Independence by the Provisional Institutions of Self-
Governance of Kosovo, Verbatim Record, Thursday December , CR /,
para. .
See SC Res. , UN Doc. S/RES/ ( November ), condemning the, illegal rac-
ist minority regime, of Smith; GA Res. (XX), UN Doc A/RES/ ( November
). More generally, see Crawford, note above, .
Crawford has suggested that the hurried recognition of the Congo can be explained by
an interpretation of government as comprising two elements: the actual exercise of
authority and the right or title to exercise that authority. With regard to the Congo, it
is the latter element that prevailed. However, this was in the context of decolonization
and the uncontested nature of title. See Crawford, note above, -.
See Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. (
January ), International Law Reports ; and Opinion No. ( January ),
International Law Reports .
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-self-
governing 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 administra-
tion can have de jure consequences. Where de facto separation is accepted as having
been sucient to cut the cord of sovereign title, the international community will ef-
fectively have presented Serbia with a no-win situation: Serbias failure to accept the
presence of UNMIK would have been read as unwillingness to recognise the autono-
mous 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 Char-
ter. 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 sug-
gests 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 neu-
trally and without prejudice to its nal 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 Sla-

vonia, 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. -.
One last element suggests the need for caution before interpreting the presence
of an international administration as changing the facts on the ground. Where one
sees the presence of an international administration on the territory of Kosovo as
rooted in the illegal use of force, as opposed to being determined by Security Coun-
cil Resolution 1244,50 then the suggestion that an international administration can
change borders takes on an additional dimension. International law outlawed the
changing of borders by military means in Article 2(4) of the UN Charter. Widely
recognised as a peremptory norm, the Security Council in relation to the situation at
the end of the First Gulf War stressed that, no territorial gains or changes brought
about by violence are acceptable.51 There is thus a strong presumption in interna-
tional law against independence born of military force or military occupation, and
the international community has taken a consistent line in the post-colonial era in
refusing to grant validity to acts committed by illegal force.52 Although it seems
more reasonable to see the presence of the international administration in Kosovo as
stemming from Security Council intervention, the circumstances leading up to the
resolution are nonetheless reason to urge caution in arguing that the loss of eective
control could lead to a loss of sovereignty in this case.
Whether the presence of UNMIK created of Kosovo a non-self-governing terri-
tory, and thereby an entity entitled to the exercise of self-determination, is dicult
to determine at this stage. Certainly if Serbia can lose title because of a loss of eec-
tive control as a consequence of international intervention, it is dicult to see how
Kosovo can claim eective control with the Security Council remaining actively
seized of the situation and the continuing level of control by international institu-
tions. Moreover, the presence of the international administration in the case of Kos-
ovo was mandated by a Security Council resolution that eectively gave guarantees
as to the territorial integrity of Serbia until agreement on the nal status could be
reached. It is thus arguably not possible to view the presence and governance of an
international administration separately from the wording of Resolution 1244, which,
as suggested at the outset, fails to resolve the nal status of Kosovo. In the absence of
As Warbrick highlights, what one denotes as the starting point will determine where we
stand today i.e. whether one takes NATOs intervention or Resolution will deter-
mine whether one sees the use of illegal military force as aecting Kosovan independ-
ence. Warbrick, note above, .
For the application of Article () UN Charter in this regard, see Crawford, note above,
-. According to Crawford, where a state illegally intervenes in and foments the
secession of a part of a metropolitan state other states are under the same duty of non-
recognition as in the case of illegal annexation of territory. Ibid. . The refusal to rec-
ognise the Turkish Republic of Northern Cyprus has been justied by some states, such
as the UK, on the basis of the illegal military intervention by Turkey that established
it. Ibid. . Furthermore, whether or not one views Kosovo as territory occupied by an
international administration authorised by the Security Council, the strict prohibitions
on the transfer of title and people of occupied territories under Section III of Geneva
Convention IV () reect the widespread unwillingness to allow the use of force to
aect title.
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 independ-
ence 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 Serbias 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 aggres-
sion.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 internation-
al 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 ef-
fect to its decisions, Article 41 grants the Council exceptionally broad powers in the
ful 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 Sys-
tem, in The Role of Law in International Politics, ed. Michael Byers (Oxford: Oxford
University Press, ), -.
According to the ICTYs interpretation of Article , the provision: provides no limits
on the discretion of the Council to take measure short of force. Prosecutor v. Tadic
(Jurisdiction), , International Legal Materials: .
Reparation for Injuries (Advisory Opinion), ICJ ( April).
The Council has certainly used Article 41 to give eect to decisions taken in
pursuit of international peace and security that have had far-reaching eects upon
sovereign rights. It has done so, for example, with regard to declaring illegal territo-
rial regimes that violate norms of non-discrimination on the grounds of race, as in
the decision not to recognise the declaration of independence by Southern Rhodesia
in 1965.56 Where it has the power to declare a declaration of independence illegal,
the Council may be presumed to have the power to pronounce upon the legality of
a given declaration. One could argue that the Security Council, on numerous oc-
casions, has pushed aside the principle of territorial integrity, by altering territorial
boundaries and/or in granting independence to a contested territory, all in further-
ance of international peace and security. For example, the implementation of the
General Assemblys Resolution on the partitioning of Palestine was taken up by the
Security Council under its Chapter VII powers at the request of the Assembly;57 the
Council also established an Iraq-Kuwait Boundary Demarcation Commission in the
wake of the First Gulf War.58 These examples, so it can be argued, were exceptional
situations demanding a far-reaching approach to the maintenance of peace and se-
curity. Kosovo may then belong to this pattern of exceptional situations.
However, there are reasons to hesitate before assigning the Security Council
sweeping powers to sever sovereign ties and alter the geographical landscape. As has
been well rehearsed in the Kosovo proceedings, in an Advisory Opinion of the Court
on the Namibia situation, Judge Fitzmaurice placed rm limits on the powers of
the Security Council, noting emphatically: Even when acting under Chapter VII of
the Charter itself, the Security Council has no power to abrogate or alter territorial
rights, whether of sovereignty or of administration It was to keep the peace, not to
change the world order, that the Security Council was set up.59 Judge Fitzmaurices
concern reects the original understanding that the Security Council was accorded
its powers on the condition that it conne its actions to short-term measures to re-
move a threat to international peace and security; thus, denitive settlements were
to be left to the sovereign parties concerned or to be dealt with by the Council un-
der the non-coercive provisions of Chapter VI.60 Indeed, the question remains as to
whether the Security Council can side-step the non-coercive nature of its settlement
dispute powers by placing such actions under Chapter VII. The drafting of Article
1(1) of the UN Charter appears to make clear that permanent settlements, unlike
enforcement action, must be made in conformity with justice and international law.
The extent to which imposing a permanent alteration of its borders upon a state and
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 Edi-
tion, (Oxford: Oxford University Press, ), -.
terminating its sovereign rights without its consent are compatible with this and
other provisions of international law, such as uti possidetis, is questionable. Moreo-
ver, were such a far-reaching intervention by the Security Council to be accepted
it would, even in the face of attempts by supporters of independence to see Kosovo
classied as a special case, almost certainly aect both the general scope and nature
of Security Council powers.
Whether or not it is now accepted practice that the Security Council has extend-
ed its powers beyond those originally envisaged at the drafting of the Charter, the
suggestion that the deadlocked negotiations over a permanent settlement entailed
that the situation in the region was untenable under the continuing terms of SC
Resolution 1244, and thus constituted a threat to international peace and security,
seems overly dramatic. It seems highly unlikely that Serbia would have sought to
impose its own unilateral solution by force Serbia has expressly stated that it will
not seek a military solution nor that neighbours would have intervened in a man-
ner that could be interpreted as a threat to international peace and security. Nor did
any gap in the legal regime exist, as SC Resolution 1244 continues to be in force and
under the provisions of the Resolution the Security Council remains actively seized
of the matter.
Yet one of the main justications given before the ICJ by those States that have
recognised an independent Kosovo is that the prospect of further negotiations in
the light of the unlikelihood of an agreed political settlement in the near future
constituted a threat to international peace and security that an independent Kosovo
prevents.61 The only basis for viewing the failure to achieve a permanent settlement
in the immediate future as likely to create instability in the region is that of an antici-
pated violent reaction from a disappointed and impatient Kosovar-Albanian major-
ity. But while a violent uprising in Kosovo against the international administration
the scenario painted in the 2006 International Crisis Group report62 and repeated
by the authors of the Declaration of Independence before the Court63 would indeed
likely constitute a threat to regional stability and thus to international security, it
seems not a little perverse to reward with recognition a community not entitled to
self-determination because they threaten violence against a Security-Council man-
For example, see the statement of France before the ICJ, ICJ Public Hearing on the
Accordance with International Law of the Unilateral Declaration of Independence by
the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Wednes-
day December , CR /, para. ; also the statement of Bulgaria, ICJ Public
Hearing on the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Governance of Kosovo, Verbatim
Record, Friday December , CR /, para. .
For an inuential statement that delaying independence was risky because of the likely
outbreak of violence on the part of the Kosovar-Albanian majority, see International
Crisis Group, Kosovo Status: Delay is Risky (Brussels/ Pristina, November ). Ac-
cessed September . http://www.crisisgroup.org/.
ICJ Public Hearing on the Accordance with International Law of the Unilateral Decla-
ration of Independence by the Provisional Institutions of Self-Governance of Kosovo,
Verbatim Record, Tuesday December , CR /, para. .
dated international mission. In addition, arguing, as some states have done,64 that
the uncertainty caused by a lack of nality over Kosovos status hinders develop-
ment eorts within the territory and thereby constitutes a threat to regional stabil-
ity would seem to set a woefully low threshold for something so fundamental as the
termination of sovereign rights, and one that such states would almost certainly not
accept were the sovereign rights theirs.
Given the weakness of arguing that the failure to move forward in the wake of the
Ahtisaari Plan constitutes a threat to international peace and security, it is, further-
more, doubtful that a Security Council imposed termination of Serbian sovereignty
would be proportional to the threat posed.65 The phrasing of Articles 40 and 42 of
the UN Charter as authorising necessary measures suggest an intention to limit
the impact of Security Council enforcement measures by the general principle of
proportionality, albeit that the Council is acknowledged to have broad discretion in
its interpretation of what is proportional in the circumstances.
Thus, whether or not the Security Council has the power to alter territorial bor-
ders permanently without the consent of the states concerned, and this authors sus-
picion is that this should be answered in the negative for the reasons suggested, it
would in any case arguably be unreasonable to conclude that the failure to agree in
the short term on a nal status for Kosovo constitutes a threat to international peace
and security of such magnitude that granting independence in contravention of Ser-
bias sovereignty would be proportionate.
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 bod-
ies, 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 independ-
ence represents the end of a turbulent period, a sort of tidying up; ICJ Public Hearing on
the Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Tues-
day December , CR /, para. .
For the need for Security Council measures to be proportional, see Charter Commen-
tary, note above, .
E.g. see the statement by the authors of the Declaration of Independence; ICJ Public
Hearing on the Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Governance of Kosovo, Verbatim
Record, Tuesday December , CR /, para. .
This argument is explicitly made by, inter alia, Austria; ICJ Public Hearing on the Ac-
cordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Thursday
December, , CR /, paras. -.
The lack of condemnation of the Security Council, whether because of political

deadlock or for any other reason, cannot reasonably be read as authorising independ-
ence, where one does not already hold that Resolution 1244 permits (or indeed man-
dates, 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 sug-
gested by Spain before the Court, to conict with the express rules of the UN Charter
concerning the adoption of decisions by the Security Council: Article 27 of the Char-
ter requires that decisions of the Security Council be made by armative vote.
Similarly, the lack of condemnation by the Secretary-General and his stated neu-
trality in the wake of the Declaration of Independence cannot be read as consti-
tuting his ocial support for independence, whatever his personal support for the
Ahtisaari Plan may be. More importantly, the Secretary-General is an administra-
tive ocer 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 adminis-
tration to the end of the goals laid down by the Council; these powers are wide-rang-
ing, 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 aord the people of Kosovo substantial
autonomy and self-government. Moreover, in the circumstance of a lack of instruc-
tions 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 Councils
existing mandate.70 Yet, it is highly unlikely that his implied powers could include
the termination of a states sovereign rights; moreover, in this particular case, any
consideration of the extent of the Secretary-Generals powers takes us back to the
wording and intention of the Security Council in Resolution 1244.
As with the Secretary-General, his Special Representatives powers are delegat-
ed 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
Verbatim Record, Thursday December , CR /, para. .
Appearing for Cyprus, Vaughan Lowe remarked in regard to the allegedly permissive si-
lence of the UN organs that, if the UN, cannot authorize dismemberment of a State by
express action, it certainly cannot do so by its failure to act. ICJ Public Hearing on the
Accordance with International Law of the Unilateral Declaration of Independence by
the Provisional Institutions of Self-Governance of Kosovo, Verbatim Record, Monday
December , CR /, para. .
The situation is arguably similar to that of the ONUC mission to the Congo in , in
which, following a breakdown of consensus among the Council on how to proceed, the
then Secretary-General, Hammarsjkold, acted as he saw t to ensure the ful lment of
the Councils existing mandate. Warbrick, note above, .
considered binding upon the parties concerned unless, again, one interprets the
wording of Resolution 1244 as authorising the Secretary-General to play a deter-
mining role in the nal status talks. For the reasons given at the outset of this paper
notably the emphasis on a negotiated outcome that respected both Serbian territo-
rial integrity and meaningful self-government for Kosovo it seems wilful to read
Resolution 1244 as determining that nal status from the outset, or of authorising
the Special Representative to himself determine what that outcome might be.
Ultimately, as Judge Fitzmaurice stated in his dissenting opinion in the Advi-
sory Opinion on Legal Consequences for States for the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), in which the issue of whether approval could be conferred by the non-
action of international organs, as a matter of law it cannot afterwards be claimed
that in reality the proposal was accepted, or at least that it was not truly rejected.
Such pleas are of a purely subjective character, and psychology is not law.71 For
these reasons, it is suggested that we should take the wording of SC Resolution 1244
at face-value.
3 Sovereignty Gained?
The arguments for suggesting a loss of title by Serbia or a Security Council-imposed
or delegated severance of sovereign rights seem to me ultimately unconvincing,
given the fundamental nature of the rights under consideration. Moreover, even if
the Security Council were to enjoy the power to terminate territorial title, it has not
done so in this case.72 Yet some 72 states have recognised an independent Kosovo in
full awareness of their legal obligation to respect Serbias territorial integrity. These
recognising states believe that Kosovo is sovereign or is certainly on the path towards
it.73 If Serbias sovereign rights cannot be severed by the presence of an international
administration and the consequent loss of eective control, and if Kosovo cannot
be understood as a territory entitled to self-determination, the only explanation for
the severance of Serbian title is to found in Kosovos assertion of sovereignty itself. If
Kosovo is sovereign, Serbia should not then be understood as having lost sovereignty
but Kosovo as having gained it.
That territorial sovereign rights must be severable is clear, despite the obvious
legal objections, as otherwise new states could not come into being. As Koskenniemi
noted in his pleading before the Court, in not one of the 200 processes of state emer-
gence of those current members of the international community did the Declaration
of Independence respect the territorial integrity of the parent state.74 This process
ICJ , para. ( June).

See Security Council debate UN Doc. S/PV. ( February ).
See Warbricks illuminating discussion on this point in relation to Swedens declaration
of recognition. Warbrick, note above, -.
Verbatim Record, Tuesday December , CR /, para. .
the act of claiming and the beginnings of the performance of sovereignty cannot
be contained by and is therefore necessarily outside the legal realm. For as Loughlin
and Walker note in laying out the paradoxical nature of the relationship between
constituent power and constituted order, [t]he legal norm remains subject to the
political exception, which is an expression of the constituent power of a people to
make, and therefore also to break, the constituted authority of the state.75 The asser-
tion of a claim to sovereignty the declaration of the (coming into-) being of a new
constituent power necessarily ruptures the previous national constitutional order
and cannot therefore be dependent upon it, i.e. by requiring its consent.76 The self-
declaration of the pouvoir constituent is therefore always unilateral and the force of
it cannot be contained by law. It is for this reason that international law has little to
say concerning a new claim to sovereignty.
Yet a declaration of independence is, of course, in itself insucient to consti-
tute an entity as sovereign. While sovereignty must indeed be claimed as the self-
declaration necessary to call a people into being the fact of sovereignty lies in the
performance of it.77 Sovereignty is arguably most usefully understood as an on-going
speech act in which the claimant seeks to persuade its audience both internally
over whom or on whose behalf the claim is being made, and externally of the fact
of its authority.78 For a claim to be persuasive, the performance must be a sustained
one, the claim constantly repeated through verbal or symbolic actions, such as the
issuing of legislation or any of the many acts that make up modern governance. It is
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, Europes 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 sover-
eignty 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
o 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 ).
this necessity of performance imperium that is reected in the doctrine of ef-

fective control.
For a claim to resonate both internally and externally, it must take some type of
institutional shape sucient to be persuasive: the constituent power must become
constituted order. As Walker notes, sovereignty is ultimately, about a plausible and
reasonably eective 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 sucient 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 reected in the pattern of recognition of ex-post facto assertions of sovereign-
ty.81 International law inevitably follows the facts on the ground.
The self-conscious claim to and performance of sovereignty, then, is sucient to
sever a previous sovereigns rights over a territory. Despite the relational and con-
tingent 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 dierent 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 de 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, insucient 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 sug-
gested that the claim has not yet achieved the degree of eectiveness 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 eective 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-con-
stituting because it can articulate a collective voice (although notably not thereby self-
constituted), 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, .
performance of sovereignty to date despite the existence of the pomp and circum-
stance of independence is too shallow to be a plausible claim to hegemony.82
This lack of eectiveness in the claim to Kosovan independence is arguably re-
ected in many of the responding declarations of recognition. As Warbricks analysis
reveals, these statements do not contain what he terms, the traditional language of
recognition.83 Instead, they recognise that Kosovo as a state that is yet to come into
being or, in the words of the Italian representative to the European Council, that Ko-
sovos status is that of, independence under international supervision.84 Not yet a
state, it is an entity in the process of state-building under the protection of the inter-
national community. Such an understanding of Kosovos current status is arguably
to be preferred to straightforward recognition. An independent Kosovo will remain
wholly economically dependent upon the international community in particular
the European Union for any foreseeable future. While economic dependency does
not equate with eective control, where a state is so totally dependent upon the will-
ingness of external actors to nance and assist with all the functions of the State, the
understanding by which eective control is equivalent to independence is rendered
defunct. Where the assessment of eective control becomes so subjective that it is
completely absorbed within the decision of whether or not to grant recognition, the
ability of this doctrine to present a balanced account of statehood is seriously under-
mined. This would be a worrying trend, given that the ability of states to live up to
their international obligations sits at the heart of international law.
In the current situation, the failure to, as yet, demonstrate the plausibility of its
sovereign claim arguably entails that Kosovos sovereign tie to Serbia has yet to be
broken. However, the desire of one-third of the international community to see an
independent Kosovo and the willingness of many of those to pay to support it sug-
gests that at some point in the not too distant future, Serbias sovereign rights will
be suciently compromised de facto by the performance of Kosovan independence
that it will have little choice but to recognise the loss de jure.85
This is of course equally true of Bosnia-Herzegovina. However, as suggested above,

Bosnia-Herzegovina gained recognition for reasons other than eective control.
Warbrick, note above, .
Similarly, the Hungarian statement recognises an internationally supervised independ-
ence; 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.kosovothanksy-
ou.com For discussion on Swedens statement see Warbrick, note above.
The discussions in the General Assembly at the beginning of September in response to
the ICJs 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 Serbias decision to back down in the face of EU
pressure suggests that the Serbian government has in eect acknowledged that Kosovo
is a battle it cannot win.
4 Conclusion
Back in 2002 in relation to NATOs intervention, Koskenniemi wrote that, [i]n some
ways, formal law seems unable to deal with Kosovo.86 This insight seems equally
pertinent in relation to considerations of Kosovan independence. If Kosovo is now
a state, it is because it has successfully asserted its claim to statehood and, in so do-
ing, has severed the thread of Serbian sovereignty. This is not a legal argument about
whether or not Kosovo is entitled to statehood, but follows from the recognition of
the performance of it. While it seems unlikely that the local authorities in Kosovo
have been able to establish themselves suciently well to terminate Serbias rights,
it is the performance of their claims that can do so. What the case of Kosovo has
exposed is the necessarily thin veneer of law that covers the assertion of the politi-
cal claim to statehood. But the case of Kosovo arguably goes further: the question of
Kosovan independence is so fascinating for international lawyers precisely because
it presents such a stark example of the radical indeterminancy of international law
that Koskenniemi so forcefully exposed in his classic treatise.87
Yet the radical indeterminancy of international law should not lead to an any-
thing goes attitude a willingness to argue anything for any price. Rather, as Ko-
skenniemi has argued as part of his call for a culture of formalism, international law
must aspire to universality. As such, it compels those that make claims under it to
make these claims in a universal way;88 thus, that states take distance from their
preferences and justify their position in a way that can be universalised beyond the
individual case.
Ultimately, the legal arguments for supporting unilateral secession are not con-
vincing. What seems most disturbing about the way in which claims surrounding
Kosovo have been made is not that Kosovo will eventually gain independence in the
absence of the means to sustain itself, or even the harm that will be done to the abil-
ity of international organisations to mount future interim administrations; but it is
that those states in favour of independence have done so little to hide their political
preferences. By repeatedly stating that Kosovo is a unique case and thus incapable
of precedent-setting, such states (and the international lawyers that represent them)
have not engaged with the radical indeterminancy of international law. Instead, by
pursuing their preferred outcome by appeal to the uniqueness of the situation, their
use of the language of international law has suggested its irrelevance.
Martti Koskenniemi, The Lady Doth Protest Too Much: Kosovo, and the Turn to Eth-
ics in International Law, Modern Law Review (): .
Martti Koskenniemi, From Apology to Utopia. The Structure of International Law Argu-
ment, New Edition, (Cambridge: Cambridge University Press, ).
Martti Koskenniemi, Legal Universalism Between Morality and Power in a World
of States, in Law, Justice and Power Between Reason and Will, ed. Sinkwan Chang
(Stanford: Stanford University Press, ), .
Chapter 4 A Contemporary Interpretation of the
Principles of Sovereignty, Territorial
Integrity and Self-Determination, and the
Kosovo Conundrum
BESFORT RRECAJ
1 Introduction
This chapter discusses the place of Kosovo in between main principles of interna-
tional law: self determination, on one hand, and sovereignty and territorial integrity,
on the other. Discussing the Kosovo conundrum in between these principles, it tries
to develop a case where the people of Kosovo would be eligible to use the right to
self-determination and secede, as a last resort, from a state where their fundamental
human rights and freedoms were denied persistently. This would give the right to
the people of Kosovo to create an independent entity where they can exercise their
fundamental human rights and freedoms. The chapter will approach legal, historical
and political development of Kosovo from the dissolution of the Ottoman Empire
up to its current status.
Discussing these issues, the chapter will focus on the challenges to Kosovo after
the declaration of independence and its struggle to enter into international relations.
In the end it will give some basic data on and the prospects for the recognition pro-
cess and the possibilities for Kosovos membership in international organizations.
In particular, it will discuss the prospects of entering some of the most important
international organizations for Kosovo; the United Nations, International Monetary
Fund, World Bank, European Union and NATO.
2 From the Ottoman Empire to the Dissolution of Yugoslavia

The case of Kosovo and its nal 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 uctuated in
margins but in general the Albanian population in Kosovo did not go below , with
into the Kingdom of Serbs, Croats and Slovenes (Kingdom of Yugoslavia) in 1919 and
then in Communist Yugoslavia in 1945 has been of a continuous denial of the right
to internal self-determination, with only 15 years between 1974-1989 of a somewhat
better situation.
The Kingdom of Yugoslavia was established as a State in 1919 with the help of the
Great Powers, outside the scope of national self-determination advanced by Wood-
row Wilson. Yugoslavia did not exist at any time in the history before that as a ter-
ritory or nation. From the 15th century most of territories forming later Yugoslavia
were occupied by the Ottoman Empire which defeated the Byzantine Empire. The
Ottoman Empire at its height managed, in 16th century, to stretch shortly up to the
backdoor of Vienna. However, during ve centuries of domination in the Balkans the
Ottoman Empire mainly occupied territory encompassing what is today Bosnia and
Herzegovina, Serbia, Montenegro, Kosovo, and Macedonia. These territories would
later be made part of the Kingdom of and subsequent communist federation of Yu-
goslavia. Before that, the region was, since ancient times, inhabited by Illyrian tribes,
the descendants of whom are todays Albanians.2
People living in territories comprising Yugoslavia were distinguished by dier-
ent millets under the rule of the Ottoman Empire. The millet was a term used in
the Ottoman Empire to distinguish people based on their religion. The Ottoman
Empire recognized Muslim, Catholic, Orthodox and Jewish millets, each of them
represented by their respective authorities with the Sultan representing Muslim mil-
let. Catholic, Orthodox and Jewish millets were represented by Austria-Hungary,
the Ecumenical Patriarch (with its center in Serbia and Greece) and Hakham Bashi
(Chief Rabbi) respectively.3 With regards to administrative division, by the mid 19th
century, after political reforms in Ottoman Empire in 1864, there were dierent ad-
ministrative divisions called vilayetes (provinces) within the empire.4 In this admin-
istrative division the Kosovo vilayet was created as an autonomous province within
the Ottoman Empire which encompassed the territory of todays Kosovo, part of
western Macedonia, southern Serbia, northern Albania and southern Montenegro
with its main seat in Shkup (today Skopje, capital of Macedonia) and later Prishtina
the remaining comprising Serbs, Montenegrins, Roma etc. According to ocial

Yugoslav statistics, despite the expulsions of many Albanians between the two World
Wars and the rst two decades after the Second World War, mostly to Turkey, the per-
centage of Albanians increased, due to other groups leaving Kosovo for more prosper-
ous 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,
Shqiptart: Historia e Popullit Shiqiptar Nga Lashtsia N Ditt e Sotme (Tirana: Mc-
Farlands and Company, Inc. Publishers, ).
Skender Anamali & Kristaq Prifti, Historia e Popullit Shqiptar (Tirana, Albanian Acad-
emy of Sciences and Arts, ), -.
Noel Malcolm, note above, -. See also Liman Rushiti, Ndarja Territoriale Dhe
Rregullimi Administrativ i Kosovs (Pristina: Institute of History, ), -
Chapter 4, Besfort Rrecaj The Kosovo Conundrum 111
(capital of Kosovo today). Other vilayetes with a mainly Albanian population created
during this time were the vilayetes of Shkodra, Ianina and Manastir.5
During the period of Ottoman occupation, mainly during the 17th century, most
Albanians were Islamized mostly from the Catholic religion. It should be noted that
the Albanian hero, Gjergj Kastrioti-Skenderbeu (Giorgia Castriota-Scanderbeg in
Latin) who fought against Ottoman Empire during 1443-1468, was acknowledged
by Pope Pius II as a defender of Christianity, Christian Gideon.6 Because Albanians
were Islamized and thus represented by the Sultan himself, it would prove dicult
for them to dene their national identity in the periods of national renaissance and
enlightenment during the 18th and 19th centuries which were marked by moves to
create national States. Other nations seeking to occupy Albanian lands attempted
to portray them as Turks before the Great Powers. Serbia, which gained an autono-
mous status within Ottoman Empire as a suzerain territory in 1815, drafted a plan in
1844 called Nacertania under the leadership of Ilia Garashanin. This was based on
the idea of pan-slavism, proclaimed and supported by Russia at that time. This plan
envisaged that Serbia, after the expected fall of the Ottoman Empire, would occupy
Albanian inhabited lands up to Durres (the main port of todays Albania) to give
them access to sea. With other nations developing their own plans to expand their
territories, the Great Powers were increasingly drawn to Eastern Question: what
would happen in the Balkans after the fall of the Ottoman Empire.7
With the weakening of the Ottoman Empire and also fearing other states irre-
dentist ambitions, Albanians proceeded with plans for national self-determination
and independence. This culminated on 10 June 1878 with the formation of the Priz-
ren League, just before the Congress of Berlin was about to discuss the crisis in the
Ottoman Empire. The Prizren League gathered the main Albanian leaders, regard-
less of their religion, in the city of Prizren (Prizren today is one of the main cities
of Kosovo). There they signed a declaration for the right to create an Albanian state
comprising only of territories inhabited by Albanians. In other words, it called for
unication of all four vilayetes into one independent Albanian state. Initially the
League of Prizren, thinking that their interests would be better defended within Ot-
toman borders, sought to settle the Albanian question within the Ottoman Empire.
The main goals of the League were: the defence of Albanian inhabited areas from the
ambitions of Serbia, Montenegro and Greece; the creation of a single vilayet com-
prised of all Albanian inhabited lands; military service for Albanians to be conned
within Albania in normal times; establishment of national schools to develop na-
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 ghter leaders ghting for the Ottoman Empire
in Asia, Africa, South Europe until he decided to desert it and return to Albania to ght
against the occupying Ottoman Empire. Ibid. -.
John Arthur Ransome Marriot, The Eastern Question: An Historical Study in European
Diplomacy (Oxford: Clarendon Press, ), -.
tional education in the Albanian language in Latin script; control over nances that
would eect the vilayet. Acknowledging that the Ottoman Empire would certainly
fall, the Albanians quickly moved within the year for total independence and cre-
ation of an Albanian state encompassing Albanian inhabited lands.8 However, fol-
lowing the defeat of the Ottoman Empire in the Russian-Ottoman war of 1877, Ser-
bia, with Russian support, occupied Albanian lands that today are part of Southern
Serbia, including Nis, Prokuplje, Presevo Valley and Novi Pazar. Occupation of these
Albanian inhabited lands which were part of Kosovo vilayet, would be followed by
the mass expulsion of Albanians and this annexation was conrmed at the Congress
of Berlin of 1878.9 The voice of the League of Prizren, represented through a memo-
randum sent to the chairman of the Congress Otto von Bismarck, was not properly
heard in the Congress of Berlin.10 While the Serbian representatives at the Congress
of Berlin presented their struggle as a war of liberation for territories inhabited and
occupied by Ottomans/Turks, they included Albanian inhabited territories. Since
most Albanians were now Islamized, the Serbian politicians attempted to portray
them as Turks. In this way they ignored the existence of an Albanian nationality and
tried to expel them from their ancient territories.
Even though a portion of Albanian territories was given to Serbia in the Congress
of Berlin, other parts of todays Kosovo still remained within the Ottoman Empire.
With the beginning of the Balkan wars in 1913 Serbia advanced further into the ter-
ritories of northern Albania, including territories of todays Kosovo, causing mass ca-
sualties and destruction of property. An International Commission of Enquiry in 1914
reported that in most cases these casualties were civilians.11 In 1913 the Great Powers
in the London Conference, decided partly to support the Albanian cause and recog-
nized an Albanian state within borders which still remain the same today, but at the
same time left other territories, including what is today Kosovo, within Serbia.12
Kosovo and its Albanian population remained part of Serbia and what was to
become the Kingdom of Yugoslavia. The Kingdom of Serbs, Croats and Slovenes was
created with the help of the Great Powers. In 1919 an agreement was signed between
Serbs, Croats and Slovenes to form the new state. Later it became known as the
Kingdom of Yugoslavia. The Kingdom of Yugoslavia was ruled by the Karadordevid
dynasty of Serbian descent. The Great Powers helped establish what they believed
was a single state representing numerous groups,13 but in truth the Kingdom of Yu-
Iljaz Rexha, Lidhja e Prizrenit n Dokumentet Osmane (Pristina: Kosovo Institute of

History, ), .
According to Western statistics, ,-, families ed to Albanian territories
still within Ottoman Empire. See Malcolm, note above, .
Ibid. .
Carnegie Endowment, Report (), , quoted in ibid. .
Marc Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Oxford
John R. Lampe, Yugoslavia as History: Twice There was a Country (Cambridge: Cam-
bridge University Press, ), -. The Kingdom of Serbs, Croats and Slovenes was
established in December , based on the Corfu Declaration and Belgrade Proclama-
goslavia was an articial state that failed to equally represent all ethnic groups.14
This can be seen from its name. Yugoslavia in the English language means South
Slavs, automatically referring to something that was supposed to represent Slavic
people living in the south of Europe. This, however, excluded Albanians who are
not Slavs. The principle of national self-determination was not equally awarded to
the Albanian people. To balance the negation of self-determination for peoples now
incorporated into the Kingdom, upon its formation, Yugoslavia was asked to sign
the declaration on the protection of minority rights. Subsequently, the Kingdom
claimed that the declaration applied only to the areas taken over from Austro-Hun-
gary, even though the declaration referred to, the areas taken over by Serbia and
Montenegro since January 1913.15
In the Kingdom era, the Kosovo Albanians16 were not accorded the status of a
minority at all and were subjugated to repression. In a petition presented to the Sec-
retary General of the League of Nations, dated 5 May 1930 the Kosovo Albanian
Christian clergy stated that the Yugoslav authorities failed to uphold provisions of
the Declaration for Protection of Minorities signed by the Kingdom of Yugoslavia. In
its eight annexes, the petition emphasized eight dierent violations of the Declara-
tion pertaining to Articles 2, 3, 7, 8, 9, 10 including 1) protection of life, 2) protection
of freedom, 3) protection of property, 4) civil and political rights, 5) right to use their
language, 6) right to establish private schools and charity organizations, 7) right to
public education, 8) freedom of religion. The petition pointed out three dierent
gross violations against Albanians: 1) persecutions to force Albanians to leave their
homes, resulting in more than 140,000 Albanians settling in Turkey, Albania and
other countries, 2) employment of force to assimilate people and 3) killing individu-
als who refused to abandon their land or to assimilate and Serbianize.17
Projects against Albanians in Kosovo were proposed by leading Serb intellectu-
als, even openly urging the use of expulsion techniques deployed against Jews in
Nazi Germany and Soviet methods of deportation. Vasa ubrilovi in his writings
presented to the government of Yugoslavia in 1937, entitled Evacuation of Albanians,
tion. It actually was a reward to the Serbs under the guise of Serbias wartime espousal
of Yugoslavism. Mark Wheeler notes, The Union of December was a shotgun
wedding; the honeymoon was as short as the hangover was long, quoted by Chris-
topher Bennett, Yugoslavias Bloody Collapse (New York: New York University Press,
), .
Frank Muenzel, Kosovo and Yugoslavia: Law in Crisis, Jurist (): -.
Further in the text Kosovo Albanians will also be referred to as Albanians, which rep-
resent Albanians in the territory of Kosovo since its incorporation in the Kingdom of
Yugoslavia and then the Federal Socialist Republic of Yugoslavia. There will be further
explanations if the reference in the text is made to Albanians from the Albanian state
or Albanians living in other parts of Yugoslavia outside Kosovo.
Memoir presente a la Societe des Nations par Done Jean Bisaku, Don Etienne Kurti et
Don Louis Gashi, La Situation de la Minorite en Yugoslavie. The document is available
in the State Archive of Federal Secretariat for Foreign Aairs in Belgrade, DASIF Be-
ograd, Fond DNZ . DI. secr //.
also urged state ocials to use physical and psychological means to pressure Alba-
nians to leave.18 ubrilovi was later appointed as Head of Serbian Academy of Sci-
ence and Arts. To achieve expulsion, Kingdom of Yugoslavia signed a secret agree-
ment with Turkey in 1938 which aimed to transfer the Kosovan Albanian population
to Turkey, but was halted because of the outbreak of the Second World War.19
At the beginning of the Second World War, the state of Albania fell under the
Italian rule, while the Kingdom of Yugoslavia fell under the German occupation. On
21 April 1941 an agreement between German and Italian foreign ministers decided
to join Kosovo to Albania under the Italian occupation. However, because of its rich
mineral resources, the northern part or Kosovo, mainly Mitrovica and surroundings
was retained by Germany. The Italian government granted Albanian citizenship to
all Albanians under Italian occupation by the decrees of October 1941 and February
1942. After the collapse of the Italian fascist regime, these Albanian territories fell
under German occupation which ocially recognized Albania within the borders
established by Mussolini.20
After the Second World War, Kosovo remained within what was now Communist
Yugoslavia. During the war, the National Liberation Council of Kosovo was created
to lead the liberation movement in Kosovo. At its rst conference from 31 December
1943 and 1-2 January 1944 in Bujan it declared in a resolution that it would join eorts
with other people under Nazi occupation for liberation and after the war wished to
join Albania.21 However at the end of the war, communists claiming to represent
Kosovo, of whom less then quarter were actually Albanians, opted for Kosovo to join
Serbia. On 3 September 1945 the Peoples Assembly of Serbia voted for the annexa-
tion of Kosovo.22 The Constitution of Yugoslavia of 1946 recognized Albanians as a
national minority. However, their position until late 1960s remained poor during
the period in oce of Aleksandar Rankovi, Yugoslavias Minister of Interior Aairs.
During this time, plans against Albanians, drafted during the Kingdom of Yugo-
slavia era, were being implemented. Forty thousand Albanian families were forced
to leave for Turkey which represented approximately 200 thousand people.23 In the
late 1960s Rankovis apparatus was dismantled. This would enable the Albanians
Vasa ubrilovi was a member of the club Mlada Bosna that projected the assassina-
tion of Archduke Franc Ferdinand. In his writings Cubrilovic states that, if we suppose
that gradual evacuation of Albanians during our colonization process is not ecient,
then we left with only one option massive expulsion of them at times when Ger-
many can evict thousands of Jews eviction of hundreds of thousands of Albanians,
would not incite a World War, cited in Malcolm, note above, -. See also Tim
Judah, The Serbs: History, Myth and Deconstruction of Yugoslavia (New Haven and Lon-
don: Yale University Press, ), .
Tim Judah, Kosovo: War and Revenge (New Haven: Yale University Press, ), -.
Malcolm, note above, -.
Sami Repishti, Rezoluta e Bujanit Janar : Nje Analiz, Studime Historike ():
.
Judah, note above, -.
to publicly express their needs, thus organizing massive demonstrations in 1968 de-
manding the same legal status as the other republics.24 These events and pressure
from other republics resulted in the adoption of constitutional amendments in 1968,
1971 and 1974. All of the amendments were embodied in the new Yugoslav Constitu-
tion in 1974. The new constitution granted Kosovo the status of autonomous prov-
ince, with clearly dened borders and the power to approve future constitutional
changes. The new legal position characterized Kosovo as a political-territorial unit
and a constituent element in the Yugoslav Federation.25 That is to say Kosovo was
a de facto republic lacking formal arrangements. Kosovo had all the features of a
federal unit, with its own president, parliament, government, constitutional court,
national bank and other administrative bodies. The constitution guaranteed the ter-
ritorial integrity of Kosovo, autonomy in judiciary, nance, economics, protection of
constitutionality and legislation, international relations, maintaining public order
and organization of national territorial defence.26 Further attempts by Albanians to
advance their status formally into a republic with mass demonstrations in 1981 were
crushed by the police causing more than 200 deaths. This was followed by a purge of
Albanians from institutions, who were found guilty of ideological diversication.27
After the death of Tito, a heightened sense of nationalism began to emerge within
Serbia urged by highly educated Serb intellectuals under the pretext of being victims
of these state arrangements, depicting the Albanians as people who would politically
destabilize and threaten the survival of Yugoslavia. It was also fuelled by the Serbian
Orthodox church demanding protection of the Serbian people and its holy shrines.
The Serbian Academy of Science and Arts drafted a Memorandum in an attempt to
redene relations within Yugoslavia and establish Serbian hegemony. In particular,
it addressed the so-called physical, political, legal and cultural genocide against the
Serbian population in Kosovo.28 In 1987, the newly elected president of Serbia, Slo-
bodan Miloevi, visited Kosovo and in an address told Serbs that, no one should
dare to beat you, while in 1988, 50,000 Serbs in Kosovo signed a petition for closer
ties with Serbia.29 In its attempt to control the whole Federation, Serbia intervened
in Vojvodina and Montenegro changing their respective leaderships with loyalists.
An important move during this period was the centralization of the command of
the Yugoslav Peoples Army. Centralization of military command was completed
Peter R. Prifti, Confrontation in Kosovo: The Albanian-Serb Struggle - (New

York: Eastern European Monographs, ), .
Kurtesh Salihu, Lindja, Zhvillimi Dhe Aspektet e Autonomitetit te Krahins Socialiste
Atutonome t Kosovs n Jugosllavin Socialiste (Pristina: University of Prishtina, ),
. See also Besfort Rrecaj, Kosovos Right to Self-Determination and Statehood (Pris-
tina: 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 Titos leadership was a means to weaken the Serb inuence in Yugoslavia. Weller,
note above, -.
by the end of 1980, while Kosovo was stripped of its control of territorial defence
by 1985. The rst Serbian constitutional amendments were proposed in 1988. This
culminated in 1989 when the Belgrade regime began to abolish Kosovos autonomy.
The Federal Presidency unilaterally approved constitutional changes, thus violating
the Constitution of Yugoslavia that required the consent of Kosovo and the Federal
Parliament. This action destroyed the political and economic autonomy of Kosovo
without the consent of Kosovo itself.30
3 The Dissolution of Yugoslavia and a Case for Self-Determination

Kosovos political elite was determined to seek peaceful means to achieve self-deter-
mination. 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 connement for months without the right to
attorney. At the beginning of 1990 demonstrations continued and a further 14 dem-
onstrators 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 Ser-
bian 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 eorts by the Albanian leadership were leading nowhere. As Serbia was
engaged in a war with Croatia and Bosnia and Herzegovina (briey 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 conict
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 rst sce-
nario 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

Ibid. -.
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 Macedo-
nia State Statistical Oce, May ).
Enver Hasani, Self-determination, Territorial Integrity and International Stability: The
Case of Yugoslavia (Vienna: National Defence Academy, Institute for Peace Support and
Conict Management, ), -.
As expected Slovenia, Croatia and Bosnia and Herzegovina declared their inde-
pendence in 1990 and 1991, respectively. Kosovo followed in the same steps with a
declaration of independence, conrmed by a referendum on 22 September 1991. 87
of eligible voters took part, of whom 99 voted for independence.36 Serbs who made
up less than 10 of the population did not participate in this voting.37 To achieve
its goals, Kosovo, lacking control over the police and any army units, attempted a
peaceful realization of its statehood.
To manage this crisis the main international actors, the European Community
(later the European Union (EU)) and the US, engaged in dierent diplomatic meth-
ods, at the beginning supporting the territorial integrity of Yugoslavia, urging the
parties to redene their relations within the State. Eorts to establish a confedera-
tion, proposed by Slovenia, Croatia and Bosnia and Herzegovina failed in 1991. This
was followed by those republics with moves for independence and war by Serbia in
a bid to create a Greater Serbia.38 In this case, the international community shifted
its stance on the preservation of Yugoslavia and the EC established a conference
chaired by Lord Carrington, initially held in the Hague, to manage the developing
situation in Yugoslavia. This conference opened the way for republics, who wished,
to be recognized as independent states. However, this process took into consider-
ation the Serbs living in these republics with special arrangements, such as a special
constitutional status or autonomy, while ignoring the Albanian situation in Koso-
vo.39 A special arbitration commission was set up by the conference, chaired by Rob-
ert Badinter (commonly known as the Badinter Commission), to give legal support
for the process of dissolution. The Badinter Commission issued ten opinions and one
interlocutory opinion, upon request by the Carrington Conference. In its rst opin-
ion, the Badinter Commisson stated that Yugoslavia is in the process of dissolution.40
In its second opinion on the issue of self-determination, the commission opined
that only republics were entitled to apply for independence under the principle of
uti possidetis, preserving the borders of republics as they were within Yugoslavia.
As the Carrington Conference opened the way for the former Yugoslav republics
to le their application and be considered for independence, the application from
the Kosovo representative was not admitted, because one of the criteria was for the
applications to be submitted only from former Yugoslav republics. According to the
Constitution of former Yugoslavia of 1974, Kosovo enjoyed a wide autonomy but not
the formal status of a republic.41 In the minds of many Albanians the peaceful resis-
See Malcolm, 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 Provi-
sions for a Convention, October and November .
International Legal Materials (): , para. .
Ram Buja, shtja e Kosovs dhe Shkatrrimi i Jugosllavis (Pristina: AAB University,
), .
tance of Kosovo allowed international community to comfortably deny Albanian de-

mands.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, satised the EC guidelines for indepen-
dence. 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 appro-
priate constitutional arrangements, which it did on 8 May 1992. Following these con-
stitutional amendments, the Commission commented that, the amended version
creates restrictions on the autonomy accorded to areas with special status and that
it satises international law requirements regarding the protection of minorities.46
The situation of Bosnia and Herzegovina was more complicated because of its eth-
nic 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 or-
ganized 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 indepen-
dence.50 Based on the referendums outcome, the Bosnian government and its collec-

paras. and .
para. .
para. .
paras. -.
See Comments on Croatias Constitutional Law of December , July .
R. Craig Nation, War in the Balkans, - (Pennsylvania: Strategic Studies Insti-
tute, August ), .
Ibid. -. Bosnian Serb leader Radovan Karadzic called this declaration as a road to
hell, where, the Muslim nation may disappear all together.
paras. -.
Nation, note above, -.
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 conict 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 Re-
publika 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 peace-
ful movement under the leadership of Ibrahim Rugova, was not the best way to pur-
sue self-determination for Kosovo. Albanians perceived the creation of the Repub-
lika 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 Miloevi 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 re-
ported 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 out-
side of the main process dealing with other Republics. However, the main focus of
the Special Group was to nd an internal solution for Kosovos 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 nding gross human rights vio-
Ibid. .
See General Framework on Agreement for Peace in Bosnia and Herzegovina, www.ohr.
com. Accessed September .
The ICJ conrmed that the Srebrenica massacre was genocide, Bosnia and Herzegovina
v. Serbia and Montenegro, ICJ para. ( February). The ICTY earlier convicted
Radislav Krstic, Chief of Sta of Bosnian Serb Army of genocide, Prosecutor v. Radislav
Krstic, ICTY, IT---A ( April ). Accessed September . www.icty.org.
See General Framework on Agreement for Peace in Bosnia and Herzegovina.
Miron Rezun, Europes Nightmare: The Struggle for Kosovo (US: Praeger Publishers,
), -.
This would be reiterated later by the Chief of the General Sta of the Yugoslav Army,
Nebojsa Pavkovic, upon signing the Kumanovo Agreement in June , which made it
possible for NATO troops to enter Kosovo. See Hasani, note above, .
lations in Kosovo.57 The UN General Assembly was also involved with its Special
Rapporteurs in a bid to follow the situation in Kosovo, although they always found
it hard to access all the requested sites for objective reporting. They presented their
ndings to the Security Council. In their reports from 1993-1997 they found dierent
violations of human rights such as general discrimination; discriminatory legislation
in relation to property; resettlement and demographic manipulation through dier-
ent programs; removal of ethnic Albanians from public oce and from commercial
enterprises; interference with the judiciary; education; freedom of press; arbitrary
arrest; torture and mistreatment; impunity for perpetrators; disproportionate use
of force.58 It is to be noted that in 1992 the Secretary of State Lawrence Eagleburg-
er, under George Bush Seniors presidency, established a red line for Serbia in its
attempts towards Albanians in the so called Christmas Warning. This warning
stated that, in the event of conict of Kosovo caused by Serbian action, the United
States will be prepared to employ military force against the Serbs in Kosovo and in
Serbia proper.59
Kosovan Albanians felt ignored in their commitment to achieve independence
in a peaceful manner. They realized that all reports of human rights violations by
Special Rapporteurs and other organizations did nothing more than ful l duties,
with slight verbal condemnations every now and then. Thus, the Albanians started
to reorganize their approach in a bid to inuence the international agenda and seek
a nal resolution of their status. The refusal of Serbs to engage in dialogue, and the
reluctance of international community to properly address the situation in Kosovo,
led to the creation of the military unit, Ushtria lirimtare e Kosoves (UK) or the
Kosovo Liberation Army (KLA).60 The KLA may be traced back to early 1990s with
minor support mainly from the youth and the rural population but this accelerated
after the Dayton Accords. Its basic concept was guerilla warfare, taking into consid-
eration its ability to confront the Serbian army since the whole territory was under
Serbian control and all army and police units were under Serbian command. Inter-
national support for KLA, be it political and military, was very weak until the NATO
airstrikes, when there was some coordination of activities. At one point the KLA
See Report of the Human Rights Rapporteur Mission to Yugoslavia, Res. /S-/,
August .
See Special Repporteurs Reports of November ; October ; December
; November ; October ; November ; October , Weller,
note above, -. Reports are available at Oce of the High Commissioner of Hu-
man Rights, www.ohchr.org.
The warning was conveyed orally and in writing and was addressed to President Slobo-
dan Miloevi of Serbia and General ivota Pani, commander of the Yugoslav Army.
See, Bush Warns Serbs Not to Widen War, The New York Times, December .
Accessed September . http://www.nytimes.com////world/bush-warns-
serbs-not-to-widen-war.html. See also Tony Barber, Bush threat to Milosevic, The In-
dependent, December . Accessed September . http://www.independent.
co.uk/news/bush-threat-to-milosevic-.html.
Judah, note above, . The Kosovo Liberation Army was founded in and subse-
quently gradually gained wide support from Albanians.
was even labelled a terrorist organization by Robert Gelbard the US special envoy
for Kosovo.61 Diplomatic engagement by the KLAs political wing with the interna-
tional actors was focused on presenting its movement as a liberation struggle, being
directed only against Serbian military and police installations in Kosovo and not
against civilian persons or objects. The KLA was also faced with problems within
Kosovo, mainly competition from the non-violent Kosovo movement. The peaceful
movement was mostly headed by the Democratic League of Kosovo and focused on
creating a parallel state system with the election of a president and the creation of
other institutions through an election system organized outside Serbian control. The
Albanian authorities elected in these votes managed to create parallel education and
health institutions supported by money collected voluntarily from Albanians living
in Kosovo, though the biggest share came from the Albanian Diaspora in Western
Europe and the USA. Later this money would be diverted to support the KLA and its
political and military structures by establishing the Vendlindja Therret (the Home-
land is calling) fund.
The KLA after the Dayton Agreement developed its structure under the politi-
cal leadership of Hashim Thaci. The KLA created its independent funding, outside
of previous funding organized by the peaceful political elite, and received most
support from hundreds of thousands of Albanians living in Western Europe and
USA. Money from the Albanian Diaspora was used to buy arms and ammunition
for resistance. Its political leader Hashim Thaci would become a key player in all the
next stages until the declaration of independence, under his direction as Kosovos
Prime Minister, Mr. Thaci, representing the KLA, would be the main participant at
Rambouillet Conference. Publicly the KLA for the rst time showed themselves in
November 1997, in the village of Llausha, during the funeral of a teacher, Halit Geci,
who was killed by Serbian forces. There they read a communiqu, which stated that,
we are the KLA, the real representatives of the war in Kosovo.62
The emergence of the KLA was used by the Serbian regime to mount attacks
against civilians under the pretext of hunting its members. Serb counter attacks
resulted in the destruction of entire villages and produced large numbers of civil-
ian casualties.63 The presence of the KLA enabled Miloevi to justify his regimes
ethnic cleansing of Kosovo, including displacement and murder of many others. The
Yugoslav army recruited and engaged paramilitary groups that would spread terror
to make the people leave their homeland.64 These acts by the Serbian state were sup-
ported, not only by the governing parties in Serbia, but also by the opposition.
Nened Sebak, The KLA Terrorist or freedom ghters? BBC News, June . Ac-
cessed September . http://news.bbc.co.uk//hi/europe/.
Hajredin Kuqi, Independence of Kosova/o: Stabilising or Destabilising Factor in the Bal-
kans? (Huston: Texas, ), .
Richard Caplan, International Diplomacy and the Crisis in Kosovo, Royal Institute of
International Aairs : (), -.
Kuqi, note above, . Large-scale killings of the Kosovo Albanians started by the end
of February when civilian Albanians were killed in the villages of Qirez and Liko-
shan, which was followed with the death of Albanians, in attempt to kill the founder
With the intensication of ghting and mounting civilian casualties, the inter-
national community became more seriously engaged in the situation. This meant
that the situation in Kosovo was no longer seen as a mere internal problem. The UN
Security Council enacted three important resolutions 1160, 1199 and 1203 during a
span time of six months in 1998, responding the situation by calling for a cease re
and, for prompt and complete investigation, including international supervision and
participation, of all atrocities committed against civilians and full cooperation with
the International Tribunal for the former Yugoslavia.65 Diplomatic eorts involving
NATO threats helped to secure the Holbrooke-Miloevi agreement on a cease re
and the establishment of the OSCE Kosovo Verication Mission (KVM). The role of
the KVM was to monitor the ceasere declared by Serbia and the KLA and in this
way to engage in a preventive diplomacy and eventually make the conditions for dia-
logue. The KVM established a Human Rights Division which came to the conclusion
that: 1) the violence perpetrated against Albanians was planned and organized at the
highest levels of Serbian authority, 2) the Serb Army, police and various paramilitary
forces specically targeted various segments of Kosovo Albanian Society, 3) sexual
crimes against woman and young girls were widespread.66
However it would be the Recak massacre in January 1999 by Serbian forces that
would trigger the conscience of the international community. The aftermath was
witnessed by KVM ambassador William Walker, later to be declared persona non
grata by Yugoslavia. In his interview given to BBC on 31 January 1999 he stated that
there, is no doubt, that this was an act of massacre.67 As armed incidents prolifer-
ated, the KVM appeared to be an increasingly helpless observer of the October Hol-
brook Agreement68. Considering the stubbornness of Serbian regime a nal attempt
was made to settle the crisis through an international conference resembling earlier
and commander of the KLA. Among them there were eighteen women and ten children
under the age of .
See SC Res. , UN Doc. S/RES/ ( March ); SC Res. , UN Doc. S/
RES/ ( September ) and SC Res. , UN Doc. S/RES/ ( October
).
The analysis also reported atrocities committed which were mainly concentrated on
Albanian collaborators with the Serbian regime and forces. See. Kosovo/a: As Seen,
As Told, An Analysis of the Human Rights Findings of the OSCE Kosovo Verication
Mission in October to June (), .
No Doubt over Recak, BBC News, January . Accessed September .
http://news.bbc.co.uk//hi/europe/.stm
Serb pathologists tried to claim that there was no massacre. On the other hand in-
vestigators from the International Criminal Tribunal for the Former Yugoslavia were
barred from Serb authorities from entering Kosovo. See Mark Weller, The Rambouillet
Conference on Kosovo, International Aairs, :, (), . See also, Pathologists,
No Kosovo massacre, BBC News, January . Accessed September . http://
news.bbc.co.uk//hi/europe/.stm, Serbs Blamed for Massacre, BBC News, Jan-
uary . Accessed September . http://news.bbc.co.uk//hi/europe/.stm
Walker: No Doubt over Recak, BBC News, January . Accessed September
. http://news.bbc.co.uk//hi/europe/.stm
conferences dealing with the dissolution of Yugoslavia. The conference was orga-
nized by the Contact Group for Kosovo (composed of US, Great Britain, Germany,
France, Italy and Russia), and the venue was a castle in Rambouillet, France. Thus, it
became known as the Rambouillet Conference. The Contact Group during prepara-
tions for the conference made it clear that they would hold both parties accountable,
if they failed to reach a compromise solution. The time to reach this compromise
was set to be 21 days.69 This was backed up more resolutely by the North Atlantic
Council in its statement the next day demanding that even force might be used as a
last resort if the parties do not show the good will to achieve a solution70 Yugoslavia,
essentially Serbia, agreed to negotiations only after taking assurances that sover-
eignty and territorial integrity will be respected under the so-called non-negotiable
issues. Despite this, Albanians, under international pressure, agreed to be part of the
negotiations. The delegation of Kosovo was headed by KLA political leader Hashim
Thaci. The Rambouillet Conference went on in two phases and the nal proposal
draft upheld Serbias territorial integrity, at least, for the period of three years, after
which this arrangement would be considered again. According to this, Kosovos sta-
tus should be settled within the constitutional arrangements of Serbia, thus granting
some sort autonomy which would still leave Albanians frustrated. The proposal also
included in its nal provisions that after a three year period this arrangement will
be reviewed and to determine a mechanism for a nal settlement for Kosovo, on the
basis of the, will of people,71 and also opinions of relevant authorities and parties
involved in the process. Ultimately, it still did not provide for clear guarantees that
a referendum would be held to determine the nal status of Kosovo. It was because
of these arrangements that the conference had two rounds, since the Kosovo Al-
banian delegation had to break the conference and return to Kosovo to reconrm
support with KLA commanders, and other leaders of Kosovo. Under international
pressure and, in particular, with the role of US Secretary of State, Madeline Albright,
the Kosovo Albanian delegation nally agreed to sign the proposal. However, the
Serbian delegation at the last moment withdraw from the conference and distanced
itself from it.72 Nonetheless, even though, the Rambouillet conference did not man-
age to bring an agreement by parties, the conference and its proposal would make
its impact in later developments in determining the nal status of Kosovo. Security
Council Resolution 1244, which will be discussed later, would have a clear reference
to the Rambouillet Accords.73
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 As-
sessment and Final Clauses. Accessed September . http://www.state.gov/www/
regions/eur/ksvo_rambouillet_text.html.
See SC Res. , UN Doc. S/RES/ ( June ). Article , Art. (a), Art () and
Annex .
The failed attempts to settle the crisis at the Contact Group sponsored Rambouil-
let Conference, followed by an all out oensive of Serbian troops against Albanian
civilians in which more than 700,000 people ed the country, led to a NATO reac-
tion. NATO did not have specic UN Security Council authorization but it acted on
the basis of humanitarian intervention. In its warning of 30 January 1999 the North
Atlantic Council stated its readiness to take whatever measures were necessary to
avert a humanitarian catastrophe by compelling compliance with the demands of
the international community and achieving of a political settlement. These included
the use of air strikes and other appropriate measures.74 The British Defence Secre-
tary George Robertson, on 21 April 1999, justied NATO intervention on the basis
of halting further human rights abuses and possible regional destabilization.75 Les-
sons learned with atrocities in Srebrenica, Rwanda and Cambodia played an im-
portant part in shaping events. Ko Annan in his speech addressing the crisis in
Kosovo before the Commission of Human Rights (succeeded by the Human Rights
Council) on 7 April 1999 stated his concern over the repetition of such a history. He
further declared that, no government has the right to hide behind national sover-
eignty in order to violate human rights.76 A Technical Military Agreement signed
in Kumanovo, Macedonia marked the capitulation of Yugoslavia and allowed NATO
troops to enter smoothly into the territory of Kosovo. Th is enabled the UN Security
Council to enact its Resolution 1244 which installed an international administra-
tion in Kosovo. UNMIKs basic role was to develop self-government in Kosovo and
prepare it for nal status talks.77
4 Back to the Negotiating Table and Ahtisaaris proposal

During the whole process of the dissolution of Yugoslavia external self-determina-
tion 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 con-
ference 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 ceasere and halt of atrocities but also for recogniz-
ing the borders of the Federal Republic of Yugoslavia, inherently situating Kosovos
See earlier warning of NATO, North Atlantic Council statement, NATO Press Re-
lease (), January . Accessed September . http://www.nato.int/docu/
pr//p-e.htm.
Brieng by the Defence Secretary, Mr. George Robertson, and the Deputy Chief of the
Defense Sta (Commitments), Air Marshal Sir John Day and Mr. Paddy Ashdown,
Leader of the Liberal Democrat Party, April .
UN Press Release SG/SM/ HR/CN/, April .
See SC Res. , UN Doc. S/RES/ ( June ) and Technical Military Agree-
ment between NATO and Serbia.
William G. ONeill, Kosovo: an Unnished Peace (Boulder: Lynne Rienner Publishers,
), .
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 nal status settlement. Thus
Resolution 1244 suspended but preserved territorial integrity of Yugoslavia,79 while it
is silent on the nal status of Kosovo. The resolution authorized the Secretary-Gen-
eral to establish an international civil presence in Kosovo to provide an interim ad-
ministration for Kosovo under which the people of Kosovo would enjoy substantial
autonomy within the Federal Republic of Yugoslavia,80 pending a nal settlement,81
for Kosovo. The UN Secretary General was represented in Kosovo by a Special Rep-
resentative (Special Representative of the Secretary General, SRSG). International
administrations main responsibilities would include, facilitating a process designed
to determine Kosovos future provisional status, taking into account the Rambouil-
let 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 in-
ternational community created standards that needed to be met by Kosovos in-
stitutions. In this process the international community rstly adopted the policy
of, standards before status, later to be changed to, standards with status, in an
apparent show of condence towards Kosovos institutions but also to avoid any situ-
ation 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 pro-
tection 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 fullment of standards. On 7 October 2005 the UN Secretary Gen-
eral informed the Security Council that conditions existed for a dialogue to begin,
under international mediation. To facilitate the process of negotiation, the UN Se-
curity Council appointed as a Special Envoy (SE), former Finnish President, Martti
See preamble of SC Res. : Rearming the commitment of all Member States to the
sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other
States of the region, see also Annex paragraph of the Resolution stating for A po-
litical process towards the establishment of an interim political framework agreement
providing for a substantial self-government for Kosovo, taking full account of the Ram-
bouillet accords and the principles of sovereignty and territorial integrity of the Federal
Republic of Yugoslavia and the other countries of the region, and the demilitarization of
the KLA. UN Doc. S/RES/ ( June ).
See Paragraph , SC Res. , UN Doc. S/RES/ ( June ).
See Paragraph (a).
See Paragraph (e).
The eight standards are: ) functioning democratic institutions, ) rule of law, ) free-
dom of movement, ) sustainable returns and the rights of communities and their mem-
bers, ) economy, ) property rights, ) dialogue, and ) Kosovo protection corps. See of-
cial website of UN Mission in Kosovo, Standards for Kosovo. Accessed September
. http://www.unmikonline.org/standards.
Ahtisaari to mediate and facilitate the negotiating process. Ahtisaaris oce would
be named the United Nations Oce of Special Envoy for Kosovo (UNOSEK).84
Due to conicting interests between the two parties, the Contact Group con-
structed ten basic principles upon which the future status should be determined.85
See Anan preporucio pocetak pregovora, B, Accessed September . Oc-

tober , http://www.naslovi.net/--/b/anan-preporucio-pocetak-pre-
govora/, 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-bude-
ostriji/.
The Contact Group Guiding Principles for the nal status of Kosovo are: ) The settle-
ment of Kosovo issue should be fully compatible with international standards of hu-
man rights, democracy and international law and contribute to regional security, ) the
settlement of Kosovos Status should conform with democratic values and European
standards and contribute to realizing the European perspective of Kosovo, in particular,
Kosovos progress in the stabilization and association process, as well as the integra-
tion of the entire region in Euro-Atlantic institutions, ) The settlement should ensure
multi-ethnicity that is sustainable in Kosovo. It should provide eective 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, includ-
ing 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 commu-
nities in government, both on the central and on the local level. Eective structures of
local self-government established through the decentralization process should facilitate
the coexistence of dierent communities and ensure equitable and improved access to
public services, )The settlement of Kosovos status should include specic safeguards
for the protection of the cultural and religious heritage in Kosovo. This should include
provisions specifying the status of the Serbian Orthodox Churchs institutions and sites
of the patrimony in Kosovo, ) The settlement of Kosovos 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 coun-
try. The territorial integrity and internal stability of regional neighbours will be fully
respected, ) The Status settlement will ensure Kosovos security. It will also ensure that
Kosovo does not pose a military or security threat to its neighbours. Specic provisions
on the security arrangements will be included, ) The settlement of Kosovos status
should promote eective mechanisms to strengthen Kosovos ability to enforce the rule
of law, to ght 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 eec-
tively with international organizations and international nancial 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 set-
tlement, 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 ).
The most important principle is Principle No. 6, which states rmly that Kosovo
would not return to its status before March 1999, that there would not be a partition,
and that there would not be a union with another state.
During negotiation process, Martti Ahtisaari used dierent forms of diplomacy
ranging from shuttle diplomacy to facilitating direct negotiations between both par-
ties in Vienna. The SE and the Deputy SE (DSE) paid their rst visit to the parties and
the region in November 2005, visiting Pristina and Belgrade, as well as the neigh-
bouring capitals of Tirana, Podgorica and Skopje. Since then, the Special Envoy, his
Deputy and senior members of UNOSEK made frequent visits to the region. In the
course of 2006, UNOSEK held 15 rounds of direct talks between the Belgrade and
Pristina negotiating teams.86
On 25 January 2007, the Special Envoy met the Secretary-General of the United
Nations Ban Ki-moon in Paris to brief him on the latest developments in the status
process and share with him the proposal. The next day, the Special Envoy metin
Vienna with Contact Group members and also shared the content of his proposal, as
part of regular consultations and close cooperation between UNOSEK and the CG.
The proposal was presented to the parties concerned in the beginning of February to
be followed by two series of meetings between them in Vienna on 21 February and 2
March 2007 and a nal one on 10 March. At the end of the high level meeting on 10
March, the Special Envoy observed that there was no will from the parties to move
away from their previously stated positions. Left with no doubt that the parties re-
spective positions on Kosovos status did not contain any common ground to achieve
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 com-
munity rights. In addition, the SE presided over direct talks with the Serbian and Ko-
sovo leadership in Vienna on July . President Boris Tadi and Prime Minister
Vojislav Kotunica 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 briengs to the Security Council ( March, July and Septem-
ber ); meetings with the CG, EU Foreign Ministers, and other international actors,
including NATO and the OSCE. Meetings discussed dierent 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 Kos-
ovo ( May, July and September);
Two meetings related to community rights ( August and September);
One meeting related to economic issues; ( May);
See UNOSEK ocial webpage. Accessed December . www.unosek.org.
an agreement and that no amount of additional negotiation would change that fact,
the Special Envoy concluded that the potential for negotiations was exhausted. He
announced his intention to nalize his proposal for submission to the UN Security
Council in the course of the month of March.
On 14 March, Deputy Special Envoy Albert Rohan went to New York to hand
over to the Secretary-General the Final Comprehensive proposal for a Kosovo Status
Settlement, as well as the Report of the Special Envoy of the Secretary-General on
Kosovos Future Status. The report and the Comprehensive proposals were ocially
delivered to the UN Security Council on 26 March.87 In the letter dated the same
day, the Secretary General then addressed the UN Security Council on the Report
of the Special Envoy of the Secretary General on Kosovos future status. The report
recommended that Kosovo be given independence under international supervision,
which would allow Kosovo to enter into international agreements and international
organizations such as UN, WTO, IMF etc. The report suggested that reintegration
into Serbia is not a viable solution due to a history of, enmity and mistrust,88 that
had long antagonized the relationship between Albanians and Serbs. It also gives
importance of the situation on the ground during the past eight years of Kosovos
governance independent of the Belgrade authorities. The report also drew the in-
ternational communitys attention to the continuance of status quo, which could
have lead to destabilization of Kosovo and potentially the region as the frustration
of the majority of the people of Kosovo was under strain after 8 years of waiting.89
Despite broad endorsement by states and international organization ocials,90 the
document failed to get support of the Security Council. It did not even get as far as
being put in the agenda, due to Russias clear threat that it would use its veto if the
proposal was tabled for voting. This would, of course, determine the fate of the whole
process. Kosovos newly elected government, despite the possible obstacle of a lack
of an endorsement by the UN Security Council for independence, would move to
declare, after almost nine years of international administration, the independence of
the Republic of Kosovo.
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 agree-
ments. 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 pro-
posals 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, exibility and a recognition of the need for realistic compromise based
solution, EU Document No. S/ ( February ).
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 Ahtisaaris proposal. Kosovos 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 ac-
cepting Ahtisaaris proposal. Again there is the declaration of recognition from
France which states that: France recognized the Republic of Kosovo as indepen-
dent 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 ocial 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 ocial 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 ad-
visory 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, re-
quiring the ICJ to give an advisory opinion on the following question: Is the unilat-
eral 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 Inde-
pendence, while the US, France, Afghanistan, Turkey and United Kingdom issued their
recognition the next day. Accessed September . http://www.kosovothanksyou.
com.
Links to declarations of the states which recognized the Republic of Kosovo are avail-
able at www.kosovothanksyou.com. Accessed August .
Ibid.
states have recognized Kosovo as of November .
Gerhard von Glahn, Law among Nations (Boston: Allyn and Bacon, ), .
Serbia informed the Secretary-General that it had adopted a decision stating that the
declaration represented a forceful and unilateral secession of a part of the territory of
Serbia, UN Doc. S/PV. ( February ); Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, UN Doc. S// (
March ).
Resolution / of the United Nations General Assembly, A/RES// ( October ).
decided to give an advisory opinion based on Article 65 of the statute of the Court.98
The Court determined that Article 12 of the Charter does not limit the power of the
General Assembly with respect to requesting an advisory opinion in cases where the
issue is under the agenda of the Security Council. According to the court, Article 12
of the Charter does not deprive the General Assembly of the jurisdiction conferred
by Article 96 and that: a request for an advisory opinion is not in itself a recommen-
dation by the General Assembly with regard to a dispute of situation.99
The Court determined that the question presented was of legal character falling
under Article 96 of the Charter and that the Court does not have to rephrase the
question to express the legal character as it has done so in specic cases.100 At the
same time the Court determined to narrowly address the question presented. Ac-
cording to the Court the question did not ask for it: to take a position on whether
international law conferred a positive entitlement on Kosovo unilaterally to declare
its independence or, a fortiori, on whether international law generally confers and
entitlement on entities situated within a State unilaterally to break away from it.101
In this regard, the Court did not see it necessary to widen the scope of the question
to include the limits of self-determination or whether Kosovo fulls the conditions
for statehood.102 In this way, the Court probably wanted to avoid a dicult task in
interpreting the principle of self-determination, more precisely remedial secession,
with regards to Kosovo in this case. Had the Court determined to interpret the prin-
ciple of self-determination, it might have placed itself in a dicult situation. On
one hand, had the Court proceeded to say that Kosovo did not have the right to
self-determination and create its own state than it would conict with the reality
of a Kosovo state recognized by 69 countries. At the same time, the Court would
have found it very dicult to ignore the historical development of the situation in
Kosovo and its human rights background for decades in contradiction to interna-
tional documents on human rights. On the other hand, had the Court proceeded to
say that Kosovo had the right to self-determination and create its own state, it would
have to elaborate it more thoroughly and set some conditions under which a certain
peoples, such as Kosovo, might be eligible for self-determination and the creation
of a state. In this case, it might have set a precedent which might be used by other
peoples and territories. However, the Court did mention that during the second half
of the twentieth century self-determination developed to the point where people of
non-self governing territories and peoples subject to alien subjugation, domination
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, repre-
sents 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. .
and exploitation can resort to this right and claim for independence.103 But, there
were also instances of declarations of independence outside this context.104 These
declarations of independence were not illegal in their character but illegality of these
declarations was connected with, the unlawful use of force of other egregious vio-
lations of norms of general international law, in particular those of a peremptory
character (jus cogens).105 This illegality was determined on case by case bases by the
Security Council, which in the case of Kosovo, has never taken such a position.106
Ultimately the Court ful lled its task by answering the question, albeit in a very
narrow way. Unlike the Courts approach to the scope of the meaning of the ques-
tion, during the proceedings, both written and oral statements from Kosovo and its
supporters, were, to a large extent, focused on the right remedial secession for the
people of Kosovo. In the same vein but in opposition, were arguments from Serbia
and its supporters. The arguments going in favour of remedial secession and creation
of the new state for the people of Kosovo were focused on the historical background
taking into consideration the position of the Albanian population for decades and,
in particular, during the 1990s when repression, human rights violations and ethnic
cleansing were widespread culminating in the war of 1997-99. In the light of this,
according to these arguments, the Kosovo people had the right to declare indepen-
dence and that, in itself, the declaration did not violate any rules of international
law including Security Council Resolution 1244 and Constitutional Framework. An
important argument was that the Kosovo case is a sui generis case and that it should
not be used as a precedent for other territories due to its peculiar circumstances and
history and that no other case in the world is so similar that might resort to exercis-
ing the same right.107
On the other hand, arguments from Serbia and its supporters placed their focus
mainly on the principle of territorial integrity and sovereignty and that the principle
of self-determination had not developed to the point where it may be utilized by peo-
Ibid. para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
See in general written statements from: The authors of the unilateral declaration of
independence; The Republic of Albania; The Federal Republic of Germany; The King-
dom of Saudi Arabia; The Republic of Austria; The Republic of Bulgaria; The Republic
of Croatia; The Kingdom of Denmark; The United States of America; The Republic of
Finland; The French Republic; The Hashemite Kingdom of Jordan; The Kingdom of Nor-
way; The Kingdom of Netherlands; The United Kingdom of Great Britain and Northern
Ireland. See also oral statements by: The authors of unilateral declaration of independ-
ence; The Republic of Albania; The Republic of Austria; The Kingdom of Bahrain; The
Republic of Bulgaria; The Republic of Croatia; Kingdom of Denmark; The Republic of
Finland; The French Republic; The Republic of Germany; The Hashemite Kingdom of
Jordan; The Kingdom of the Netherlands; The Kingdom of Norway; the Kingdom of
Saudi Arabia; The United Kingdom of Great Britain and Northern Ireland. Accessed
August . www.icj-cij.org/docket/index.php?p=&p=&k=&case=&code=ko
s&p=.
ple such as the Kosovo Albanians with their peculiar history. Another argument put
foreword by them was that a precedent would eventually be created should Kosovos
independence be supported by the Court and other states.108
During the elaboration, the Court also addressed the identity of the authors of
the declaration of independence. In other words, the Court determined whether the
authors were expressing the will of the people as a democratically elected repre-
sentatives or whether they were still acting as the provisional institutions of self-
governance pursuant to the Constitutional Framework. The Court determined that:
the authors of that declaration did not act, or intend to act, in the capacity of an
institution created by and empowered to act within that legal order but, rather, set
out to adopt a measure the signicance and eects of which would lie outside that
order.109 The Court came to this conclusion by analyzing several factors including
the text of the declaration, the exclusive procedure of voting for the declaration, par-
ticipants in the plenary session and the intention of the authors and the procedure it
followed after the adoption of the declaration. The declaration of independence was
adopted straight after the elections of 17 November 2007 and the intention of the
newly elected leaders was to act on behalf of the people of Kosovo to express their
will for independence outside the legal framework in existence up to that moment,
as the declaration of independence states in its rst paragraph: We, the democrati-
cally-elected leaders of our people, hereby declare Kosovo to be an independent and
sovereign state.110 The declaration was adopted by 109 members of the newly-elected
parliament (the Parliament of Kosovo has 120 seats). Upon its adoption the decision
was not forwarded for promulgation by the Special Representative of the Secretary-
General, pursuant to the regular procedure under UN administration.111 A marked
and important feature to the process was that the SRSG did not use its power ac-
cording to the UNMIK Regulation 1999/1 to make the declaration null and void.112
After the elaboration of the case presented before it, the Court voted by ten votes
to four that: the declaration of independence of Kosovo adopted on 17 February
See in general written statements from: The Republic of Serbia; The Argentine Republic;
The Republic of Azerbaijan; The Republic of Belarus; The Plurinational State of Bolivia;
The Federative Republic of Brazil; The Republic of Burundi; The Peoples Republic of
China; The Republic of Cyprus; The Kingdom of Spain; The Russian Federation; Ro-
mania; The Bolivarian Republic of Venezuela; The Socialist Republic of Viet Nam. See
also oral statements by: The Republic of Serbia; The Republic of Azerbaijan; The Re-
public of Belarus; The Plurinational State of Bolivia; The Federative Republic of Brazil;
The Republic of Burundi; The Peoples Republic of China; The Republic of Cyprus; The
Lao Peoples Democratic Republic; Romania; The Russian Federation; The Kingdom of
Spain; The Bolivarian Republic of Venezuela; The Socialist Republic of Viet Nam.
Kosovo Opinion, note above, para. .
Ibid. para.. See also Declaration of Independence of Kosovo, February . Ac-
cessed August . http://www.assembly-kosova.org/?krye=news&newsid=&l
ang=en.
Ibid. paras. -.
See UNMIK Regulation / Section , ., ( July ). Accessed August .
http://www.unmikonline.org/regulations//reg-.htm.
2008 did not violate international law.113 The Court did not answer directly the issue
of self-determination and its limits, especially in cases of gross violations of human
rights and repression, but it recognized that states were created outside of the con-
text of colonial rule.114 Declarations of independence and creation of the new states
outside the colonial context were deemed to be illegal only on a case by case basis,
depending on any underlying illegality, and condemnation by the Security Coun-
cil.115 In the case of Kosovo the SC never took any action against the declaration of
independence.
The advisory opinion of the Court is given to the organ requesting it. In this
case it is up to the GA to interpret and proceed further. Serbia sponsored a resolu-
tion, backed by the EU, and endorsed by a consensus in the General Assembly on
9 September 2010. The resolution urged for dialogue between parties stating that:
the process of dialogue in itself would be a factor for peace, security and stability
in the region, and that dialogue would be to promote cooperation, achieve prog-
ress on the path to the European Union and improve the lives of the people.116 The
resolution also acknowledged the recent advisory opinion of the ICJ on the legality
of the independence declaration by the Provisional Institutions of Self-Government
(PISG) of Kosovo.117 However, in the end it still left the parties in their positions the
way dialogue should be interpreted. From Kosovo side and its supporters, it means
anything but the issue of status, while for Serbia and its supporters, status should be
on the table.118 It remains to be seen how the EU will manage to push for a solution
at time when within the EU there is a minority of states that do not recognize the
Kosovo Opinion, note above, para. . Dissenting opinions were expressed by Judge
Koroma, Judge Bennouna and Judge Skotnkov, mainly on the issue that the Court did
not answer the question properly because the right to self-determination and its limits
was not taken under consideration or that the Court should have declined to answer the
question because the organ, General Assembly, requesting the question did not have the
right to ask it in the rst place. See Judge Skotnikov, Dissenting Opinion, -.
Ibid. para. . In addressing this issue the Court probably referred to the independence
of Pakistan, Bangladesh, the former Yugoslav Republics and the dissolution of USSR.
Ibid. para. . SC Resolutions () and (), concerning South Rhodesia; SC
Res. (), concerning Northern Cyprus; and SC Resolution (), concerning
the Republika Srpska.
See GA Press Release GA/ ( September ).
See GA Press Release GA/ ( September ).
See statement by Kosovo Prime Minister after the UN Assembly Session upon
his return to Pristina: Pranimi I rezolutes ne nje forme njohje nga Serbia, Tel-
egra, September . Accessed September . http://www.telegra.
com/?id=&a=&komentet=. See also statement by Albania, Turkey, Peru and the
US during the General Assembly session in support for Kosovo independence and that
the dialogue means a process to stabilize bilateral neighbourly relations and that status
should not be negotiated. On the other hand, see statement by Serbias foreign min-
ister Vuk Jeremi upon reading the proposed resolution during the GA session. Also
see statements by Russia, Brazil, China and Venezuela. General Assembly Press Release
GA/ ( September ).
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 worlds wealth.
But, equally important, Kosovo needs quantitative recognition to be able to enter in-
ternational organizations through which it can benet politically and economically.
Kosovos aspirations to enter into some of the most important international organiza-
tions present dierent 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 sys-
tem, 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 nancial and monetary organizations such as the World Bank and Interna-
tional 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 member-
ship to the IMF and World Bank, the Director of World Bank armed 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 member-
ship of the World Bank (WB) and International Monetary Fund (IMF) is not linked
to UN membership.120 Finally Kosovo become a full edged 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 of-
cial 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 ocial website of World Bank and International Monetary Fund, www.worldbank.
org and www.imf.org.
Following are statistics about voting procedure that enabled Kosovo to enter Interna-
tional Monetary Fund and World Bank which took place on May and June
, respectively:
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 dierent with other important organization which Kosovo aspires to
join. UN is the largest and most representative intergovernmental organization. Ac-
cording 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 ful l.122 Membership of Kosovo is important in many ways. First
Voting in the IMF: FOR: Albania, Afghanistan, Angola, Antigua and Barbuda, Aus-
tralia, Austria, Bahamas, Barbados, Belgium, Belize, Benin, Bulgaria, Burkina Faso,
Burundi, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Columbia,
Comoros, Congo, Costa Rica, Cote DIvoir, Croatia, Czech Republic, D.R. Congo, Den-
mark, Djibouti, Dominica, Egypt, Estonia, Fiji, Finland, France, Gabon, Gambia, Ger-
many, Ghana, Guinea Bissau, Haiti, Hungary, Iceland, Iraq, Ireland, Italy, Japan, Jordan,
Kenya, Latvia, Lesotho, Liberia, Lithuania, Luxemburg, Malawi, Malaysia, Maldives,
Malta, Marshall Islands, Mauritius, Montenegro, Mozambique, Netherlands, New Zea-
land, Niger, Nigeria, Norway, Oman, Palau, Panama, Peru, Portugal, Qatar, Republic of
Korea, Republic of Macedonia, Rwanda, St. Kitts and Nevis, St. Lucia, St. Vincent and
Grenadine, Samoa, San Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, South
Africa, Sudan, Swaziland, Sweden, Togo, Trinidad and Tobago, Turkey, United Arab
Emirates, United Kingdom, USA, Vanuatu, Yemen, Zambia. AGAINST: Angola, Paki-
stan. ABSTAINING: Bahrain, Burundi, Honduras, Solomon Islands. BOYCOTTED:
Iran, Kuwait, Lao DPR, Micronesia, Papua New Guinea, Tunisia.
Voting in the World Bank: FOR: Albania, Afghanistan, Angola, Antigua and Barbu-
da, Australia, Austria, Bahamas, Bahrain, Barbados, Belgium, Belize, Benin, Bulgaria,
Burkina Faso, Burundi, Canada, Cape Verde, Central African Republic, Chad, Colum-
bia, Comoros, Congo, Costa Rica, Croatia, Czech Republic, Denmark, Djibouti, Domi-
nica, Estonia, Fiji, Finland, France, Gabon, Gambia, Germany, Guinea Bissau, Haiti,
Honduras, Hungary, Iceland, Iran, Ireland, Italy, Japan, Jordan, Kenya, Kuwait, Lao DPR,
Latvia, Micronesia, Liberia, Lithuania, Luxemburg, Malawi, Malaysia, Maldives, Malta,
Marshall Islands, Mauritius, Montenegro, Netherlands, New Zealand, Niger, Nigeria,
Norway, Oman, Pakistan, Palau, Panama, Papua New Guinea, Peru, Portugal, Qatar,
Republic of Korea, Republic of Macedonia, St. Kitts and Nevis, St. Lucia, Samoa, San
Marino, Saudi Arabia, Senegal, Sierra Leone, Slovenia, Solomon Islands, Sudan, Swe-
den, Togo, Tunisia, Turkey, United Arab Emirates, United Kingdom, USA, Vanuatu,
Yemen, Zambia. AGAINST: St. Vincent and Grenadine. ABSTAINED: Cote DIvoire,
Egypt, Swaziland, Trinidad and Tobago. BOYCOTTED: Cameroon, D.R. Congo, Ghana,
Iraq, Lesotho, Mozambique, Rwanda, South Africa. See Report of the Oce for Bilateral
Issues, International Organizations and Security Issues of the Ministry of Foreign Aairs
of the Republic of Kosovo, MPJ ZMD /, Ministry of Foreign Aairs of the Republic
of Kosovo.
See Chapter II of the Charter on Membership issue.
of all, it would legitimize the new state of Kosovo by including it in this exclusive
state organization but also implying that states who voted in favour of Kosovos
UN membership recognize it. Second, Kosovo would be part of an organization of
collective security in which Kosovo would receive guarantees on territorial integ-
rity and sovereignty in compliance with the principles of the Charter. And also as
important it would give Kosovo access to dierent activities and forums organized
within the UN framework.
However, mainly because of Russias strong opposition, membership at the UN
currently seems to be years away. The membership procedure has two phases. First,
a country should be recommended by the Security Council and then a positive rec-
ommendation is sent to the General Assembly for voting. In the SC, nine member
states would have to vote in favour of admission of Kosovo with no veto exercised
by any of the permanent members.123 In the GA, Kosovo would need 2/3 of the votes
meaning that it would need around 130 states to vote for Kosovan membership.124
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 al-
ternative 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 rede-
signed role after the cold war is involved in contributing in dierent 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 ac-
countability process towards its citizens and its anity 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
Serbias readiness to manipulate the Serb minority within Kosovo: may destabilize
the new state requiring NATO-KFOR troops to continue their peacekeeping mis-
sion.
Article of Charter on Security Council voting procedure and Rule and of the
Rules of Procedure of the Security Council.
Article of Charter on General Assembly voting procedure for new members.
See NATO Ocial Website, www.nato.org, www.kfor.com, www.nato.int/SFOR/, www.
ntm-a.com/, www.jfcnaples.nato.int/ntmi/ntmi_index.html. Accessed September
.
See Art. of North Atlantic Treaty of April on membership issue.
These tensions were evident in Serb national and local elections when Serbia en-
couraged Serb minorities to organize local elections in Kosovo and form parallel
institutions regardless of opposition from Kosovos government and UNMIK, which
considered them to be illegal.127 Another important factor for NATO is also for mili-
tary structures to be compatible with NATO standards. This might not prove too
dicult for Kosovo, since NATO has been in Kosovo since 1999 as a peacekeeping
force through KFOR. During this time it was involved in the process of transforming
the KLA into the Kosovo Protection Corps as a civilian force during the transition
process to become the Kosovo Security Force (KSF) after independence. The KSF
which operates under the Ministry of Kosovo Security Forces is being structured
and trained under the supervision of KFOR which applies strict NATO standards.
The KSF is a civilian force which is a result of the Ahtisaari proposals and is equipped
with light armaments only.128 However this is a good basis for a swift transformation
into a real military structure adhering to NATO standards, which will make it suit-
able for admission to NATO.
Membership of NATO is also linked to the readiness of its members to admit
Kosovo as an equal partner. All members need to agree in favour of membership in
order for Kosovo to be admitted.129 However, there are obstacles in this process as
some member States have not yet recognized Kosovo, such as Spain, Greece, Slo-
vakia and Romania. Internally, it would be the United States, Britain, France and
Germany, as the big players within NATO, who could play an important role in
persuading other countries to vote in favour of Kosovos membership.
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 dierent means. The EU can prove to be a good incentive to set
aside deeply rooted dierences 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 Ocial 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//, Brus-
sels, ( October ).
is among the countries looking for membership in the EU despite many statements
by Serbian ocials stating that they will not to abandon their claim for Kosovo in
exchange for EU membership.131 The EUs impact on Serbias policies can be seen
partly in the visa liberalization process. Serbia was very keen to see the EU open the
door for liberalization of visas for Serbian citizens. However, part of the deal was for
Serbia to stop issuing passports to Kosovo citizens under the justication that Serbia
is not able to control the population in Kosovo and thus not be able to commit to
EU standards on movement of people. Serbia agreed to this condition, and for the
rst time since 1999, Serbia is in the process of ending the issuing passports for the
Serbian population in Kosovo whom it regards as its citizens.132
The EU is present in Kosovo through the EULEX mission, established by EU joint
action to support the rule of law in Kosovo.133 The EU has also established an Euro-
pean Commission Liaison Oce in Kosovo. Since it was hard for Kosovo to estab-
lish any formal contractual relationship with the EU because ve member states
have not yet recognized Kosovo, the EU established a so-called Special Tracking
Mechanism to help raise Kosovo to European standards.134 To facilitate this, the EU
established the EU partnership for Kosovo, which foresees around 130 priorities for
Kosovo to ful l in European political, economic and legal standards. As a response
to this partnership, Kosovo created the European Partnership Action Plan which
outlines all the actions needed to ful l its obligations from the European partner-
ship. Kosovo has established special institutions to manage the European integra-
tion process.135 The EU also produces a progress report on Kosovo over specic issues
as it does with other aspiring States. Last year in its 2008 Enlargement Strategy the
EC decided to conduct a study, unocially referred as the feasibility study to dene
further Kosovos progress in its relations to EU. This study was released together
with the yearly progress report on 14 October 2009 and recommended several steps
towards the EU mainly: visa liberalization, autonomous trade measures, participa-
See eli, Neemo pristati na ucene zarad lanstva u EU, Blic Newspaper, August
. Accessed September . http://www.naslovi.net/--/blic/djelic-
necemo-pristati-na-ucene-zarad-clanstva-u-eu/; Kosovo neemo menjati za
lanstvo u Uniji, Blic Newspaper, August . Accessed September . http://
www.vesti.rs/Politika/Kosovo-necemo-menjati-za-clanstvo-u-Uniji.html.
See Commission Launches Dialogue with Serbia on Visa Free Travel, EC Press Re-
lease No. IP//, January . See also Kosovo Serbs Feel Betrayed by Serbia on
Visa Liberalization, The South East Europe Times, July . Accessed Septem-
ber . http://www.setimes.com/cocoon/setimes/xhtml/en_GB/newsbriefs/setimes/
newsbriefs////nb-.
See EU Council Joint Action //CFSP. February .
See European Commission ocial webpage. Accessed September . http://
ec.europa.eu/enlargement/potential-candidates/kosovo/political_pro le_en.htm.
See Kosovo Agency for Coordination of Development and European Integration ocial
webpage. www.acdei-ks.org. Accessed December .
tion in the pan-Euro-Mediterranean culmination of origin,136 integration into the

economic and scal surveillance, an oer for agreement with Kosovo on the general
principles of its participation on the community programmes, strengthening par-
ticipation in the Stabilization and Association Agreement, utilizing the instrument
of pre-accession (IPA) cross-border cooperation component.137 However in all its re-
lations with the EU, due to the ve 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 full in order to be-
come a membership candidate. In particular, a state has to have anity 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 com-
munitaire covers 30 dierent areas which include democratic institutions, a mar-
ket economy and scal 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 Kosovos 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 anyother one of the
without losing their originating status within the Pan-Euro-Med Zone. countries
include countries of EU, EFTA, Turkey and countries that signed the Barcelona Decla-
ration to include Algeria, Egypt, Israel, Jordan, Lebanon, Syria, Morocco, Tunisia, the
Palestinian Authority and Faroe Islands. See EC Homepage on Taxation and Customs
Union at http://ec.europa.eu/taxation_customs/customs/customs_duties/rules_origin/
preferential/article__en.htm. Accessed September .
See Communication from the Commission to the European Parliament and the Coun-
cil: Kosovo-Ful lling its European Perspective, COM () , Brussels, October
. See also Kosovo under UNSCR / Progress Report, SEC () ,
Brussels, October .
See EU Parliament Press Release No.IPR ( February ).
See EC Ocial webpage http://europa.eu/scadplus/glossary/community_acquis_en.htm.
Accessed September .
7 Conclusion
International law still largely remains based on its traditional roots of development
with the principle of territorial integrity and sovereignty at the cornerstone of its
corpus. In the post-Cold War period, the consciousness of the international commu-
nity has shifted signicantly towards human rights and fundamental freedoms. Hu-
man rights are realized within independent entities called states and a representative
government is key to their realization. The people are the sovereign and they in trust
transfer their sovereignty to the state in order to protect themselves and create a
framework where the people can exercise their human rights. In a democratic state,
a state takes its power from the people and it has the duty to represent all its people
and work for the benet and protect them from actions of private persons as well
as state actions.140 Failing to represent a part of the people would mean that a state
loses its sovereignty over that part of the people who then may become eligible to
reorganize themselves in a new arrangement in creation of a new independent entity
where they would be represented equally and their human rights and fundamental
freedoms would be protected.141 It means that no state can hide behind the veil of
sovereignty and territorial integrity in denying human rights to individuals, groups,
entities, population or part of the population within its borders.
Although there is still no international rule determining circumstances when a
certain group of a state may gain the right to secede, there is a growing consensus
that sovereignty and territorial integrity ought to be exercised within the limits of
having a representative government, where all people are equally presented.142 The
ICJ, in its advisory opinion on Kosovo, elaborated above, did not answer whether the
Kosovo people had the right to self-determination and statehood or not. It eloquent-
ly avoided this issue, while answering the question presented. However, by doing so,
John Locke, The Second Treatise of Government (Indianapolis: C. B. Macpherson, ),

-.
Antonio Cassese, Self-Determination of Peoples: a Legal Reappraisal (Cambridge: Cam-
bridge 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 author-
izing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States conduct-
ing 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
signicance of human rights and fundamental freedoms, respect for which is an essen-
tial 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.
it may be understood that the principles of sovereignty and territorial integrity are
not absolute, though its limits are still ambiguous.
Serbia failed to exercise its duty to respect, promote and protect human rights
over Kosovo with its Albanian majority population. In this way it forfeited its sov-
ereignty to govern the territory of Kosovo because of its actions against the people
of Kosovo and in this way created a right for Kosovo to secede and create its own
independent state, where they can realize, promote and protect fundamental human
rights and freedoms. Kosovo has declared its independence in harmony with Ahti-
saaris proposal and since then has been recognized by 72 countries. The Constitu-
tion of Kosovo gives clear mechanisms for minority groups through which they can
exercise their rights. The state of Kosovo is facing challenges in its pursuit to have
a seat at the international table. The existence of a state is matter of fact but accep-
tance by others determines its participation in regional and global developments.
Recognition may be swift or it may take longer. It is a sovereign act and depends on
the will of each individual state where they consider it appropriate to issue formal
recognition. Kosovo has gone a signicant way forward but a lot still remains to be
done to get to its aspiration of standing in international relations.
Chapter 5 Kosovo: Unilateral Secession and
Multilateral State-Making
JURE VIDMAR*
1 Introduction
On 17 February 2008, Kosovo declared independence.1 Statements of state ocials2
and legislation passed by Serbias parliament3 leave no doubt that no consent was
* The author wishes to thank the editor of this volume, Dr. James Summers, for help-
ful comments on earlier drafts. Some parts of this chapter have appeared in the arti-
cle entitled International Legal Responses to Kosovos Declaration of Independence,
Vanderbilt Journal of Transnational Law (): . Some parts also draw on
the authors PhD thesis entitled Democracy and State Creation in International Law,
which was supervised by Prof Robert McCorquodale and defended at the University of
Nottingham. The chapter also draws on the authors conference paper entitled Kosovo:
Unilateral Secession or Collective State Creation? presented on March at the
University of Lancaster. The author wishes to thank the participants of the event for an
inspiring debate. Any mistakes are, of course, the authors own.
See Kosovo Declaration of Independence . Accessed February . http://www.
assembly-kosova.org/?cid=,,.
Consider, for example, the address of the President of Serbia, Boris Tadi, to the Secu-
rity Council on February , where he stated: The Republic of Serbia will not ac-
cept the violation of its sovereignty and territorial integrity. The Government of Serbia
and the National Assembly of the Republic of Serbia have declared the decision of the
Pristina authorities null and void. Likewise, we are taking all diplomatic and political
measures to prevent the secession of part of our territory. UN Doc. S/PV. ( Feb-
ruary ), .
See The Decree on the Annulment of Illegal Acts of Interim Organs of Self-Government
in Kosovo and Metohija on the Unilateral Declaration of Independence () [herein-
after The Decree] <http://www.srbija.sr.gov.yu/kosovo-metohija/index.php?id=>.
See also The Decree on Conrmation of the Decree of the Government of the Repub-
lic of Serbia on the Annulment of Illegal Acts of Interim Organs of Self-Government
in Kosovo and Metohija on the Unilateral Declaration of Independence . Ac-
cessed April . http://www.parlament.sr.gov.yu/content/lat/akta/akta_detalji.
asp?id=&t=O>.
given from the parent state. Yet recognition was not collectively withheld and has
been expressly granted by seventy two states.4
The role of recognition in international law has been traditionally looked at
through two theories. According to the constitutive theory, recognition by other
states creates a new state and endows it with legal personality,5 while the de-
claratory theory, maintains that recognition is merely an acceptance by states of
an already existing situation.6 In the declaratory view recognition therefore merely
acknowledges the existence of a state. In the example of Kosovo, it is dicult to
explain the legal situation from the perspective of either theory. From the constitu-
tive perspective, Kosovo both is a state (for the seventy two recognising states) and
is not a state (for states denying recognition). From the declaratory perspective, it
is questionable whether recognition merely acknowledged the fact of the existence
of the state of Kosovo. Further, it remains controversial whether Kosovo meets the
statehood criteria7 and whether the state creation met the legality requirements.8
This chapter considers the legal and factual circumstances in which Kosovo de-
clared independence and argues on the legal relevance of international responses to
the Declaration of Independence. The circumstances of Kosovos Declaration of In-
dependence were determined by the legal arrangements created by Security Council
Resolution 1244,9 by the absence of Serbias consent and, ultimately, by the consid-
erable number of recognitions. An argument is made that part of the international
community was involved in producing, rather than acknowledging, the emergence
of a new state and therefore Kosovo may, possibly, be regarded as an (informal) col-
lective state creation. Yet it remains questionable whether the state creation has been
successful and not even the Advisory Opinion on Kosovo, given by the International
Court of Justice (ICJ) on 22 July 2010,10 claries Kosovos legal status. Parallels will
As of November , the following states have granted recognition (in alphabeti-

cal order): Afghanistan, Albania, Australia, Austria, Bahrain, Belgium, Belize, Bulgaria,
Burkina Faso, Canada, Colombia, Comoros, Costa Rica, Croatia, Czech Republic, Den-
mark, Djibouti, Dominican Republic, Estonia, Finland, France, Gambia, Germany, Hon-
duras, Hungary, Iceland, Ireland, Italy, Japan, Jordan, Kiribati, Latvia, Liberia, Liech-
tenstein, Lithuania, Luxembourg, Macedonia, Malawi, Malaysia, Maldives, Malta, the
Marshall Islands, Mauritania, Micronesia, Monaco, Montenegro, Nauru, the Nether-
lands, New Zealand, Norway, Palau, Panama, Peru, Poland, Portugal, Samoa, San Ma-
rino, 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 ).
Respect of Kosovo, ICJ ( July) [hereinafter the Kosovo Opinion].
Chapter 5, Jure Vidmar Kosovo: Unilateral Secession and Multilateral State-Making 145
be drawn to some other post-1990 new state creations in which the international
community had signicant involvement. What these new state creations have in
common, how they diered from the Kosovo situation and the legal signicance of
these dierences will be shown.
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 sta-
tus. 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 viola-
tions and a grave humanitarian situation. Writing in 1998, Noel Malcolm observed:
To produce an adequate survey of the human rights abuses suered by the Albanians
of Kosovo since 1990 would require several long chapters in itself. Every aspect of life in
Kosovo has been aected. Using a combination of emergency measures, administrative
ats and laws authorizing the dismissal of anyone who had taken part in one-day protest
strike, the Serb authorities have sacked the overwhelming majority of those Albanians
who had any form of state employment in 1990. Most Albanian doctors and health work-
ers were also dismissed from the hospitals; deaths from diseases such as measles and polio
have increased, with the decline in the number of Albanians receiving vaccinations. Ap-
proximately 6,000 school-teachers were sacked in 1990 for having taken part in protests,
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.
See James Crawford, The Creation of States in International Law (Oxford: Oxford Uni-
versity Press, ), .
and the rest were dismissed when they refused to comply with a new Serbian curriculum
which largely eliminated teaching of Albanian literature and history.19
After years of peaceful resistance by the Democratic League of Kosovo, the mili-
tant Kosovo Liberation Army (KLA) emerged.20 Serbian opposition escalated in re-
sponse.21 The situation in Kosovo was dealt with by Security Council Resolutions
1160,22 1199,23 120324 and 1239.25 The rst three were adopted under Chapter VII of
the UN Charter. The resolutions, inter alia, called for a political solution of the situ-
ation in Kosovo,26 condemned the violence used by organs of the Federal Republic
of Yugoslavia (FRY) as well as violent actions taken by Kosovo Albanians (the latter
were called acts of terrorism),27 and, arming the territorial integrity of Serbia,28
expressed support for, an enhanced status of Kosovo which would include a sub-
stantially greater degree of autonomy and meaningful self-administration.29
While violence in Kosovo continued, negotiations between the FRY and Kosovo
Albanians aiming for a political settlement began in February 1999 at Rambouil-
let, France.30 On 23 February 1999, the Rambouillet Accords on Interim Agreement
for Peace and Self-Government in Kosovo were drafted.31 The document sought to
Malcolm, note above, .

See Vickers, note above, .
Ibid. -.
SC Res. , UN Doc. S/RES/ ( March ).
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 sover-
eignty 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/RambouilletIndex.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: NATOs War Against
Serbia and its Aftermath, International Journal of Human Rights (): . Her-
ring further argues: The Contact Group proposal was eectively 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
establish conditions for the termination of hostilities in Kosovo32 and foresaw mean-
ingful self-government for Kosovo based on democratic principles.33 In this context
the Rambouillet Accords included a Constitution for Kosovo,34 which established
self-governing organs with wide powers.35 The document further foresaw a with-
drawal of Serbian military and police forces from Kosovo36 and NATO peacekeep-
ing.37 Importantly, the Rambouillet Accords stressed territorial integrity of the FRY
in both the preamble38 and in the operative articles.39
The Rambouillet Accords were signed by the representatives of Kosovo Albanians
on 18 March 1999, while the FRY and Serbia refused to sign.40 Following this refusal,
on 24 March 1999, NATO started a military campaign against the FRY.41 A full dis-
cussion of the legality question of the NATO intervention is outside of the scope of
this chapter. Suce it here to recall that given the absence of authorisation of the
use of force in the relevant Security Council resolutions,42 the NATO intervention is
generally perceived to be in breach of the UN Charter.43
The end of hostilities between NATO and the FRY was achieved on 9 June 1999
with the signing of the Military Technical Agreement at Kumanovo, Macedonia.44
Kosovo Albanians. Signatures of the United States, the EU and Russia were foreseen as
witnesses. See The Rambouillet Accords, Chapter , Article II.
See The Rambouillet Accords, Chapter , Article II, paras. , .
Ibid. Chapter , Article II, para .
Ibid. Chapter .
See ibid. The organs established by the proposed Constitution were the Assembly [Ar-
ticle II], President of Kosovo [Article III], Government and Administrative Organs [Ar-
ticle IV] and Judiciary [Article V].
Ibid. Chapter , Articles IV & VI.
Ibid. Chapter , Article I, para. (a).
Ibid. preamble, para . The preamble to the Rambouillet Accords, inter alia, recalls, the
commitment of the international community to the sovereignty and territorial integrity
of the Federal Republic of Yugoslavia.
Ibid. Chapter , Article I, para. (a).
See Crawford, note above, -.
See Dino Kritsiotis, The Kosovo Crisis and NATOs Application of Armed Force
Against the Federal Republic of Yugoslavia, International and Comparative Law Quar-
terly (): .
See SC Res. ; SC Res. ; SC Res. ; SC Res. , UN Doc. S/RES/ ( May
).
See Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, European
Journal of International Law (): ; Antonio Cassese, Ex iniuria ius oritur: Are
We Moving towards International Legitimation of Forcible Humanitarian Counter-
measures in the World Community? European Journal of International Law ():
; Christine Chinkin, Kosovo: A Good or Bad War? American Journal of Interna-
tional Law (): ; Kritsiotis, note above, .
The Military-Technical Agreement between the International Security Force (KFOR)
and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia
The Agreement rearmed, deployment in Kosovo under UN auspices of eective

international civil and security presences and noted that, the UN Security Coun-
cil 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 interna-
tional security force (KFOR), following adoption of the UN Security Councils reso-
lution.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, rearmed, the com-
mitment of all Member States to the sovereignty and territorial integrity of the Fed-
eral Republic of Yugoslavia.51 Nevertheless, the Resolutions operative paragraphs
created an eective situation in which the FRY exercised no sovereign powers in
Kosovo.52
(June , ) Accessed April . http://www.nato.int/kosovo/docu/aa.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 im-
mediate and veriable end to violence and repression in Kosovo, and begin and com-
plete veriable 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. ).
In accordance with Resolution 1244, the Special Representative of the Secre-

tary-General promulgated a regulation entitled On the Authority of the Interim
Administration in Kosovo, which vested supreme legislative, executive and judi-
ciary authority in the United Nations Interim Administration Mission in Kosovo
(UNMIK).53 Subsequently, the Special Representative promulgated the Constitu-
tional 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 Kosovos self-governing institu-
tions. Thus, although Resolution 1244 states that the aim of the interim adminis-
tration is that, the people of Kosovo can enjoy substantial autonomy within the
Federal Republic of Yugoslavia,55 the eective situation implies Kosovos autonomy
within the interim administration. Indeed, UNMIK has assumed what is eectively
(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 dene a
future territorial status of Kosovo but called for a political process leading toward a
nal settlement. However, in this period of undetermined future status the interna-
tional administration, which had been established to solve the governance problem,
ended up, aecting [sic] or creating a sovereignty problem.58 The political process
aiming to lead toward a nal settlement was thus greatly inuenced by Kosovos un-
determined 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 Frame-
work].
SC Res , para. . But see also William ONeill Kosovo: An Unnished Peace (Boul-
der: 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 dened.
Ralph Wilde, From Danzig to East Timor and Beyond: The Role of International Ter-
ritorial 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 Admin-
istration, in Kosovo and the International Community: A Legal Assessment, ed. Chris-
tian Tomuschat (The Hague: Kluwer Law International, ), -.
See Wilde, note above, .
c 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 Kosovos nal status59 and former Finnish Presi-
dent Martti Ahtisaari was appointed Special Envoy of the UN Secretary-General on
Kosovos status talks.60
After more than a year of unproductive negotiations, Special Envoy Ahtisaari
recommended internationally supervised independence, with the continued pres-
ence of international territorial administration.61 In a letter from 26 March 2007, the
Special Envoy observed that: Belgrade demands Kosovos autonomy within Serbia,
while Pristina will accept nothing short of independence.62 In his view the negotia-
tions potential to produce any mutually agreeable outcome on Kosovos 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 eective situation suggested that the only alternative to independence was the
status quo. However, the latter was also rejected by Ahtisaari, arguing that its uncer-
tain status prevents Kosovos 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 Kosovos
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 land
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.
Belgrades Proposal Freezes Kosovo Status for Years, Tanjug, November .
Accessed March . http://www.mfa.gov.yu/Policy/CI/KIM/__e.html. The
so-called land-Islands-Model is summarised in following terms: Serbias sole juris-
diction 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, scal policy, internal a airs, health care, energy, infra-
structure and employment. Kosovo would independently elect and develop its institu-
tions, and Serbia would not interfere in this. Kosovo would have legislative powers in
again, it became clear that Kosovo Albanians were not willing to accept anything
but independence and the additional round of negotiations merely rearmed the
observations of Special Envoy Ahtisaari a mutual agreement on the future status
of Kosovo was not achievable and, thus, the political process called for by Resolution
1244 failed.68
Ocials of the United States and of the European Union (EU) soon expressed a
general willingness to recognise Kosovo as an independent state.69 Ultimately, Koso-
vos Declaration of Independence on 17 February 2008 came as no surprise. Media
reports in the weeks and days prior to the Declaration suggest that it was coordi-
nated between Kosovo ocials, on the one hand, and part of the EU and the United
States, on the other.70 It thus became obvious that part of the international commu-
nity decided to implement the Ahtisaari Plan without a Security Council resolution.
the spheres of its sole jurisdiction and in other cases determined by the agreement.
Serbia could not change and abolish laws in Kosovo, Kosovo would have executive pow-
ers, an independent and complete judicial system in charge of disputes in the sole juris-
diction of Kosovo and in other cases determined in the agreement. Belgrades proposal
calls for a transitional period under EU monitoring and the presence of international
judges. In keeping with the example of Finland and the Aland Islands, in the case of
Kosovo Serbia is the subject of international law and Kosovo is oered as its exclusive
jurisdiction the negotiating of agreements with other states and international organiza-
tions. Kosovo prepares agreements in consultation with Serbia, while Belgrade formally
signs the agreements along with the signature with Kosovo and Metohija.
Kosovo Troika Press Communiqu, The Baden Conference ( November ). Ac-
cessed March . http://www.consilium.europa.eu/ueDocs/cms_Data/docs/press-
Data/en/declarations/.pdf.
See Talks on Kosovo Hit a Dead End, Rice Says, New York Times, December .
Accessed March , http://query.nytimes.com/gst/fullpage.html?res=FEDB
FEFBACACB&scp=&sq=kosovo&st=nyt.
See Here Comes Kosovo, New York Times, February . Accessed February
. http://www.nytimes.com////opinion/cohen.html?scp=&sq=kosovo
&st=nyt. See also the protocol drafted (in Slovene) by an ocial of the Slovenian foreign
ministry after meeting with representatives of the United States Department of State on
December (in the rst half of Slovenia lead the Presidency of the Council
of the EU), which leaked to media. Accessed April . http://www.delo.si/media/
faksimile.pdf and http://www.delo.si/media/faksimile.pdf. The protocol proves
that Kosovos declaration of independence was coordinated between Kosovos leaders
on the one hand and the United States and the EU on the other. The following notes are
especially instructive: The prevailing view in the EU is that independence of Kosovo
needs to be declared after the elections in Serbia ( January [] and February
[]) The session of the Kosovo Parliament, at which declaration of independence
would be adopted, should take place on Sunday, so RF [the Russian Federation] has no
time to call for the meeting of the UNSC [United Nations Security Council]. In the
mean time the rst recognitions could already arrive The United States after Koso-
var authorities declare independence, will be among the rst to recognise Kosovo. The
United States strives for recognition of Kosovo by as many non-EU states as possible.
The United States is lobbying with Japan, Turkey, Arab states, that have showed readi-
ness to recognise Kosovo without hesitation The United States is currently drafting
d The ICJs 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 ac-
cordance 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 ques-
tion 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 specically asked whether the organs of Quebec had, the right to eect 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 specic right vested in
Kosovo in general or in the institutions of its self-government in particular to de-
clare 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 identied three possible sources of illegality: (i) general interna-
tional 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 Courts 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 char-
acter (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-condence, as this could result in
United States loss of inuence. (Translations from Slovene are the authors own).
GA Res. /, UN Doc. A/RES// ( October ).
Kosovo Opinion, para .
Quoted in the Kosovo Opinion, para .
Ibid. para. .
Ibid. para. .
Ibid. para. .
The Court further identied Resolution 1244 as the lex specialis which could poten-
tially prohibit a unilateral declaration of independence. But, according to the Court,
Resolution 1244, did not bar the authors of the declaration from issuing a decla-
ration of independence from the Republic of Serbia.78
The formulation did not bar the authors of the declaration seems to be very care-
fully chosen. Indeed, in the Courts view, independence was not declared by Kosovos
institutions of self-government, but rather [by] persons who acted together in their
capacity as representatives of the people of Kosovo outside the framework of the
interim administration.79 The Court thus left open a possibility that the prohibition
was addressed to Kosovos institutions of self-government but, in light of Courts
nding on the identity of the authors of the Unilateral Declaration of Independence,
this question had become irrelevant.
It is also important to note that the Court did not build its argument entirely
on its pronouncement on the identity of the authors of the Declaration of Indepen-
dence. Discussing Resolution 1244 more broadly, the Court held that a prohibition
of a declaration of independence cannot be derived from the language of the resolu-
tion understood in its context and considering its object and purpose. The language
of Security Council resolution 1244 (1999) is at best ambiguous in this regard.80
According to the Court, the object and purpose of the Resolution was the creation
of the interim administration and not the nal settlement of Kosovos territorial
status.81 If this argument is accepted, the nal settlement of the territorial status
of Kosovo falls outside of the purview of Resolution 1244 and therefore a unilateral
declaration of independence is not prohibited, no matter who were the authors of
the Declaration.
In relation to possible illegality under the Constitutional Framework, the Court
argued:
The Court has already held that the declaration of independence of 17 February 2008
was not issued by the Provisional Institutions of Self-Government, nor was it an act in-
tended to take eect, or actually taking eect, within the legal order in which those Provi-
sional Institutions operated. It follows that the authors of the declaration of independence
were not bound by the framework of powers and responsibilities established to govern the
conduct of the Provisional Institutions of Self-Government. Accordingly, the Court nds
that the declaration of independence did not violate the Constitutional Framework.82
In the context of the Constitutional Framework, the Court thus based its argument
only on its prior pronouncement that the Declaration of Independence was not is-
sued by Kosovos institutions of self-government but rather by a group of individu-
Ibid. para. (emphasis added).

Ibid. para. .
Ibid. para.
Ibid. para. .
Ibid. para. .
als.83 Unlike in respect of Resolution 1244, the Court did not try to make a broader
argument.
The Courts reasoning is not without controversies, yet a thorough analysis of
the advisory opinion is not the purpose of this chapter. The Court ultimately con-
cluded that: the adoption of the declaration of independence of 17 February 2008
did not violate general international law, Security Council resolution 1244 (1999) or
the Constitutional Framework. Consequently [the Court held that] the adoption of
that declaration did not violate any applicable rule of international law.84 As pointed
out earlier in the Opinion, these ndings did not have any implications for the ques-
tion of whether or not Kosovo is a state and whether or not recognition of Kosovo is
in accordance with international law.85 But these are some of the issues which will be
dealt with in the forthcoming sections.
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 Ser-
bia and legislation passed in Serbias parliament show that Serbia expressly opposes
Kosovos independence and that Kosovos 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 ful lled through internal self-determination a peoples pursuit
See note above.

Ibid. para. .
David Rai, Statehood and the Law of Self-Determination (The Hague: Kluwer Law In-
ternational, ), .
Ibid.
See The Decree on the Annulment of Illegal Acts of Interim Organs of Self-Govern-
ment in Kosovo and Metohija on the Unilateral Declaration of Independence ()
[hereinafter The Decree]. Accessed April . http://www.srbija.sr.gov.yu/kosovo-
metohija/index.php?id=. See also The Decree on Conrmation of the Decree of
the Government of the 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>.
of its political, economic, social and cultural development within a framework of an exist-
ing state.89
While not an entitlement, it is questionable whether unilateral secession is prohib-

ited under international law. There is no specic prohibition of unilateral secession.90
Yet, in one view:
[T]he legality of secession cannot be judged on whether there is a specic rule of author-
izing or outlawing it. As soon as the principle of territorial integrity applies, it necessarily
outlaws secession without the consent of the parent state. Such understanding avoids sys-
temic inconsistency under which international law would guarantee territorial integrity
yet would not prohibit secession. 91
Such a view assumes that the principle of territorial integrity is absolute, which might
not be the case.92 There is some evidence that under certain circumstances states
are willing to waive observance of the territorial integrity of other states.93 Further,
an inverted reading of the elaboration of territorial integrity in the Declaration on
Principles of International law might give rise to remedial secession, i.e. secession of
oppressed peoples.94 Such a view seems to be taken by the Supreme Court of Canada
in its further reasoning in the Quebec Case: A right to external self-determination
Reference re. Secession of Quebec [] Supreme Court Reports (Canada), para

[Hereinafter: The Quebec Case].
Thomas Franck, Fairness in International Law and Institutions (Oxford: Oxford Uni-
versity Press, ), .
Alexander Orakhelashvili, Statehood, Recognition and the United Nations System: A
Unilateral Declaration of Independence in Kosovo, Max Planck Yearbook of United
Nations Law (): .
ford 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 be-
fore 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 Declara-
tion 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 compli-
ance 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-
(which in this case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then, under carefully
dened circumstances.95
While it remains utterly disputable whether remedial secession really is an
entitlement,96 this doctrine may have some merit if perceived in the context of inter-
national recognition of an attempt at unilateral secession. Shaw argues:
[I]t may well be the case that the attitudes adopted by third states and the international
community as a whole, most likely expressed through the United Nations, in deciding
whether or not to recognize the independence of a seceding entity will be aected by
circumstances factually precipitating secession, so that recognition may be more forth-
coming where the secession has occurred as a consequence of violations of human rights.
Thus, the content of the [safeguard] clause should perhaps best be seen in this light, that is
as a relevant factor in determining the views taken by the international community gener-
ally, and states particularly, as to recognition.97
Therefore, while remedial secession is not an entitlement, it may well be that op-
pression softens the claim to territorial integrity, so that foreign states may be more
willing to waive its observance. This implies that the principle of territorial integrity
does not have the status of an absolute principle.
Another fact relevant for the question of legality of unilateral secession is that a
mere unilateral declaration of independence does not create a state and therefore
does not automatically create a new legal situation. It is therefore dicult to see how
a unilateral declaration of independence would, by itself, lead to an illegal situation
under international law.98 The most probable answer is that unilateral secession is,
a legally neutral act the consequences of which are regulated internationally.99 This
was also the position taken by the ICJ in the Kosovo Opinion but the Court failed to
discuss the question of recognition in this context.100
However, the link between unilateral secession and recognition was expressly
made by Supreme Court of Canada in the Quebec Case:
titled to limit the exercise of the right of self-determination of its peoples to the internal
mode of consummation of this right.
The Quebec Case, para. .
Consider the following argument: Such a major change in legal principle cannot be
introduced by way of an ambiguous subordinate clause, especially when the principle
of territorial integrity has always been accepted and proclaimed as a core principle of
international law, and is indeed placed before the qualifying clause in the provision in
question. Malcolm Shaw, Peoples, Territorialism and Boundaries, European Journal
of International Law (): .
Ibid.
This is not to say that state creation can never be illegal. For more see below Chapter .b.
Although there is no right to unilateral secession this does not rule out the possibil-
ity of an unconstitutional declaration of secession leading to a de facto secession. The ul-
timate success of such a secession would be dependent on recognition by the international
community, which is likely to consider the legality and legitimacy of secession having re-
gard to, amongst other facts, the conduct of Quebec and Canada, in determining whether
to grant or withhold recognition.101
This argument also suggests that states are not required to withhold recognition
only because an attempt at secession is unilateral. Moreover, as argued above, it may
well be that foreign states are more likely to grant recognition in situations where
oppressed peoples try to create their own state. However, state practice in this regard
is insuciently developed. What also follows from the reasoning of the Supreme
Court of Canada is that in the circumstances of unilateral secession recognition
might constitute a state. This issue will be dealt with below. At this point the focus
will be on the legality criteria which, as identied by the Supreme Court of Canada,
play a role in recognition.
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 per-
son of international law should possess the following qualications: (a) a permanent
population; (b) a dened territory, (c) government; and (d) capacity to enter into
relations with other states.103 It is commonly accepted that these criteria reect cus-
tomary 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 eective 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 land 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 as-
sistance of foreign troops.106

League of Nations Treaty Series (): .
Ibid.
See, for example, Rai, note above, .
See, for example, Anthony Aust, Handbook of International Law (Cambridge: Cam-
bridge University Press, ), -.
International Commission of Jurists, Report on Legal Aspects of the Aaland Islands
Question, League of Nations Ocial 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.
Kosovos Declaration of Independence107 and the subsequently adopted Constitu-

tion 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 su-
preme 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 simi-
lar to that of Bosnia-Herzegovina.109 However, there is one important dierence be-
tween 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,
Kosovos government is not eective in the entire territory of Kosovo.112
See note above.

Kosovos 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 nal 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 Day-
ton Accords], Article X ( December ). Accessed August . http://www.
oscebih.org/overview/gfap/eng. Created in the context of a violent attempt to dismem-
ber Bosnia-Herzegovina, the current federal arrangement is a compromise, brokered
by the United States. The parties to the Dayton Accords were the Republic of Bosnia-
Herzegovina, the Republic of Croatia, the FRY and two newly-created entities in Bosnia-
Herzegovina: 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-Herzegovinas becoming a state was armed also by the ICJ. The Bosnia
Genocide Case, ICJ para ( July).
Kosovos government does not exercise eective control over predominantly Serb-set-
tled northern parts of Kosovo. See, for example, Walking the Kosovo Tightrope, The
Guardian, June . Accessed August . http://www.guardian.co.uk/com-
mentisfree//jun//kosovo-eu-un-serbia.
Signicantly, non-eective entities have become states before. In the age of de-
colonisation, exercise of the right of self-determination was often regarded as more
important than eectiveness.113 Even in non-colonial situations eectiveness consid-
erations were not applied strictly when new states were created: Croatia and Bosnia-
Herzegovina became states, although their governments did not exercise eective
control over their respective territories.114 It is thus at least questionable to what
degree the traditional statehood criteria are still taken into account when new states
are created. Further, it is also questionable whether ful lment of the traditional
statehood criteria is enough for a state creation.115
Practice of states and UN organs show that even when an entity becomes eec-
tive, it will not necessarily be considered a state if it was created illegally.116 The il-
legality of a state creation has been accepted in certain situations when eective ter-
ritorial situations were created as the result of an unlawful use of force,117 in breach
of the right of self-determination118 or in pursuance of racist policies.119
According to the Commentary to the International Law Commission (ILC) Ar-
ticles on Responsibility of States for Internationally Wrongful Acts, the character of
these norms may be considered to be that of jus cogens.120 Article 41(2) of the ILC
Articles on State Responsibility provides that: no State shall recognize as lawful a
situation created by a serious breach [of jus cogens] nor render aid or assistance in
maintaining that situation.121 As a consequence, states owe an obligation erga omnes
to withhold formal or implied recognition of an eective territorial situation, created
See Malcolm Shaw, International Law (Cambridge: Cambridge University Press, ),

.
See Rai, note above, and Crawford, note above, .
Ibid. -.
See SC Res. , UN Doc. S/RES/ ( November ) for collective response to il-
legal 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 ).
in breach of jus cogens.122 It may well be that the prohibition of illegal use of force,
prohibition of racial discrimination and respect for the right of self-determination
have become additional statehood criteria123 but such an interpretation has not been
accepted by all scholars and some rather regard them as legality-based recognition
requirements.124
The potential illegality of Kosovos state creation can be traced from NATOs use
of force,125 whether as a consequence of non-meeting of the additional statehood cri-
teria or of non-fullment of the legality-based recognition requirements. However,
such an argument is not without diculties. Kosovos Declaration of Independence
was proclaimed by the self-governing organs established under the legal regime of
Resolution 1244.126 Therefore it is dicult to accept that Kosovos Declaration of In-
dependence stems directly from the NATO intervention and that the obligation to
withhold recognition applies erga omnes, as a consequence of a violation of jus co-
gens.127 Resolution 1244 probably interrupts the legal link between the (illegal) use of
force and the state creation. Even paragraph 81 of the Kosovo Opinion suggests that
Kosovos (attempt at) unilateral secession cannot be attributed to the use of force or,
more generally, to a violation of jus cogens.128
However, in light of references to the territorial integrity of the FRY (now Serbia),129
it may well be that a non-consensual state creation was prohibited under Resolution
1244. It is questionable at this point whether Resolution 1244: (i) makes a declara-
tion of independence an illegal act under international law, so that international law
would no longer be neutral on the question of unilateral secession in this particu-
lar circumstance;130 and (ii) whether reference to the territorial integrity of what is
now Serbia puts an obligation on states to collectively withhold recognition. States
expressly denying recognition and states granting recognition do not have unitary
answers to these two questions.131
Commentary to Article , Report of the ILC, UN Doc. A// (), .

See Robert McCorquodale, The Creation and Recognition of States. in Public Inter-
national 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 DAspremont, Regulating Statehood, Leiden Journal of International Law
(): .
See note above.
Compare notes and above.
Consider Russias 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
The rst question was dealt with by the ICJ in its advisory opinion. The Court
found no illegality of this kind under the lex specialis regime of Resolution 1244.132
It is important to recall that the ICJs pronouncement on no illegality referred only
narrowly to the issuing of the unilateral declaration of independence and did not
deal with the questions of statehood or recognition.133
In regard to the second question, in some previous situations of non-recognition
stemming from illegality of a state creation, there existed specic resolutions of UN
organs explicitly calling for non-recognition.134 It remains unclear whether a bind-
ing resolution or decision of a UN body is necessary for an obligation of non-recog-
nition to be triggered135 but, nevertheless, such a resolution or decision makes the
obligation denitive.136
Non-recognition has been called for in a number of General Assembly resolu-
tions.137 Further, there has been one instance when the Security Council acted under
Chapter VII when it called for non-recognition: after Southern Rhodesia proclaimed
itself a republic.138 In some other instances the Security Council issued non-Chapter
VII resolutions, yet according to the ICJ in the Namibia Advisory Opinion even
non-Chapter VII resolutions may be binding on all States Members of the United
Nations, which are thus under obligation to accept and carry them out.139 Notably,
when non-Chapter VII resolutions were in question, virtually full compliance with
the obligation to withhold recognition was achieved.
It needs to be noted that collective non-recognition has also been practised, in
a number of other situations without a formal United Nations resolution to that
eect.140 This suggests that states perceive themselves to be legally bound to with-
hold recognition in situations of illegal state creations even in the absence of resolu-
tions of the UN organs explicitly calling for recognition. The added value of reso-
an open violation of the Republic of Serbias sovereignty, the high-level Contact Group
accords, Kosovos Constitutional Framework, Security Council resolution ()
which is the basic document for the Kosovo settlement and other relevant decisions
of the Security Council. UN Doc. S/PV. ( February ), . On the other hand,
it was argued on behalf of the United Kingdom: Resolution () placed no limits
on the scope of that status outcome, and paragraph (a) of the resolution is clear that
the substantial autonomy which Kosovo was to enjoy within the Federal Republic of
Yugoslavia was an interim outcome pending a nal settlement. Ibid. .
See note above.
See above Chapter .d.
See notes - above.
McCorquodale, note above, .
Ibid.
See notes - above.
See SC Res. , UN Doc. S/RES/ ( March ).
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) Notwithstanding Security Council Resolution (), ICJ
para ( June).
lutions which explicitly call for non-recognition seems to be that they set out the
reasons for non-recognition and leave little room for states to interpret the question
of illegality of a state creation.
In the example of Kosovo, a specic resolution calling for non-recognition is ab-
sent. The interpretation of whether there exists an obligation to collectively withhold
recognition under Resolution 1244 is left to states and there is no unitary answer to
this question. The number of recognitions implies that at least seventy two states
believe that an obligation to withhold recognition does not apply under Resolution
1244.
A parallel may be drawn to East Timor. Upon Indonesias occupation, the Se-
curity Council adopted Resolutions 384 and 389, which referred to the territorial
integrity of East Timor and to the right of self-determination of its people and, in-
ter alia, recalled that, despite Indonesias occupation, Portugal was still regarded its
administrative power.141 The resolutions, however, did not specically call for non-
recognition of Indonesias authority over East Timor. When Portugal advanced the
argument that such an obligation follows from Resolutions 384 and 389, the ICJ held:
The Court notes that the argument of Portugal under consideration rests on the premise
that the United Nations resolutions, and in particular those of the Security Council, can
be read as imposing an obligation on States not to recognize any authority on the part of
Indonesia over the Territory and, where the latter is concerned, to deal only with Portugal.
The Court is not persuaded, however, that the relevant resolutions went so far.142
Certainly the circumstances of the East Timor question were dierent from those
in the Kosovo question and Resolutions 384 and 389 are not identical to Resolu-
tion 1244. Unlike in Resolution 1244, references to territorial integrity were made in
regard to the disputable territory itself (i.e. East Timor) not in regard to the parent
state. Also signicant, this was not a matter of a possibly illegal state creation but
of an illegal territorial presence and suppression of self-determination exercised in
the context of decolonisation. It is nevertheless signicant that the ICJ seems to
have implied that an obligation to withhold recognition can arise from a resolution
of the Security Council only if such a resolution explicitly calls for non-recognition.
Portugals interpretation, that such an obligation was implied from other provisions,
was rejected as unconvincing. Therefore it may well be that Resolution 1244 is not to
be read as a call for non-recognition. Just as with Resolutions 384 and 389, a call for
non-recognition could only be implied. However, this conclusion needs to be made
with caution. Indeed, such an interpretation of Resolution 1244 is expressly rejected
by some states143 and commentators.144
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, -.
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, conse-
quently, an erga omnes obligation to withhold recognition does not apply. In the ab-
sence of a specic resolution calling for non-recognition, there is no unitary answer
to this question and more interpretations are possible. It is signicant that at least
seventy two states believe that they are not under an obligation to withhold recogni-
tion. Now legal signicance 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 signicance, but this relationship is a complicated one.145 Indeed, the relation-
ship between factual situations and the creation of legal rights by the act of recogni-
tion remains a controversial issue in international law, since the act has legal conse-
quences 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, wheth-
er 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 deciency 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--vis the recognising states but not vis--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 wheth-
er 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 situ-
ations 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, Whats 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 Commu-
nity, European Journal of International Law (): .
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 eects.
But recognition of an entity with an ambiguous legal status is a separate issue. In
unclear situations, recognition can have the eect of providing crucial evidence of
entitys status.153 And when recognition of such an entity is granted virtually univer-
sally, recognition may well have an eect of a collective state creation:
[I]n many cases, and this is true of the nineteenth century as of the twentieth, interna-
tional action has been determinative [for new state creations]: international organizations
or groups of States especially the so-called Great Powers have exercised a collective
authority to supervise, regulate and condition new state creations. In some cases the
action takes the form of the direct establishment of the new State: a constitution is pro-
vided, the State territory is delimited, a head of State is nominated. In others it is rather a
form of collective recognition although the distinction is not a rigid one.154
Such a conclusion also nds a support in the Quebec Case, where the Supreme Court
of Canada held that the success of a unilateral secession would ultimately depend on
international recognition.155
The collective state creations are therefore not only a matter of direct multilateral
state-making such as, for example, at the Congress of Berlin156 or settlements after
both world wars.157 And they are not always a matter of institutionalised internation-
al action. Collective state creations can also be a consequence of informal agreement
and/or concerted practice among certain states. It is the act of recognition which
can be used as a tool of an informal new state creation.
When acknowledging some constitutive eects in the act of recognition, caveats
accompanying the constitutive theory need to be considered.158 Indeed, if collective
recognition by certain states is considered equivalent to state creation, the inevitable
question that follows is how many and whose recognitions are necessary for collec-
tive recognition to be seen as state creation. However, this question could also be
asked from the other direction: in absence of a Security Council Resolution explicitly
calling for non-recognition, how many and whose withholdings of recognition are
See Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commis-
sion:A Contextual Study of Peace-Making Eorts in the Post-Cold War World (Alder-
shot: Ashgate, ), . See also generally Craven, note above.
Craven, note above, .
The Quebec Case, para . See also note above.
Ibid. .
Ibid. -.
See note above.
required that an entity is not considered a state? As the example of Kosovo shows,
this question is not easy to answer. In this particular situation, are seventy two rec-
ognitions enough for Kosovo to be considered a state? These controversies will be
dealt with in the broader context of international involvement in the post-1990 state
creations
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 emer-
gence 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 eects. This was not the case in
some other post-1990 state creations. This section examines the legal signicance 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 dis-
solution of Czechoslovakia), ibid. (for the creation of Eritrea).
As a response to the crisis in the SFRY, the European Community (EC) and its member-
states, on August , founded the Conference on Yugoslavia, under the auspices of
which the Arbitration Commission was established. The Arbitration Commission was
chaired by the President of the French Constitutional Court, Robert Badinter, therefore
it is commonly referred to as the Badinter Commission. The mandate of the Commis-
sion and the scope of its decisions were, however, not entirely dened: The mandate
given to the [Commission] was somewhat vague. At the outset it was envisaged that
the [Commission] would rule by means of binding decisions upon request from valid
Yugoslavian authorities. Although no consultative procedure was formally established,
the [Commission] was in fact called upon to give one opinion at the request of Lord
Carrington, President of the Peace Conference similar requests were subsequently
made by the Serbian Republic, using the Conference as intermediary and the Council
of Ministers of the EEC. See Alain Pellet, The Opinions of the Badinter Arbitration
Committee: A Second Breath for the Self-Determination of Peoples, European Journal
of International Law (): . The scope of the legal issues that the Badinter Com-
mission dealt with was relatively broad. Indeed, [m]inority rights, use of force, border
changes, the rule of law, state succession, and recognition all eventually fell within the
Commissions brief. Grant, note above, . The opinions of the Badinter Commis-
sion were formally not legally binding; however, this was a body of strong legal persua-
siveness and its opinions importantly shaped international response to the dissolution
of the SFRY.
that recognition is declaratory and that it did not perceive itself as a body which
creates states. Such a perception is obvious from the reasoning in Opinion 11 in
which it was, inter alia, held that Slovenia and Croatia became states on 8 October
1991 (the day of the expiry of the moratorium on their respective declarations on
independence),161 Macedonia on 17 November 1991 (the day of the adoption of a new
constitution),162 Bosnia-Herzegovina on 6 March 1992 (the day of the proclamation
of referendum results)163 and the FRY on 27 April 1992 (the day of the adoption of a
new constitution).164 These opinions imply a declaratory understanding of recogni-
tion. However, they were made subsequently, for state succession purposes, and are
not unproblematic.165
When the Badinter Commission delivered its Opinion 11, on 16 July 1993, Slovenia
and Croatia had already been recognised as independent states and were members of
the UN.166 Further, on 16 July 1993 there already existed the authority of the Badinter
Commissions previous opinions holding that the SFRY was in the process of disso-
lution (Opinion 1)167 and that this process was completed (Opinion 8).168
Yet on 8 October 1991, an authority holding that the process of dissolution was
underway in the SFRY was absent. Further, such a nding was supported by the fact
that four out of the SFRYs six constitutive republics had declared independence,169
while on 8 October 1991, Bosnia-Herzegovina had not yet declared independence170
and Macedonias declaration was fairly recent.171 The prevailing view on 8 October
1991 was that Slovenia and Croatia sought unilateral secession.172 In such a circum-
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 SFRYs former republics became independent states. See Ar-
bitration 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. .
Bosnia-Herzegovina declared independence on October . See The Ocial Ga-
zette 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 , re-
printed in Sneana Trifunovska, Yugoslavia through Documents:From its Creation to its
Dissolution (Dordrecht: Martinus Nijho, ), -.
See Grant, note above, -, arguing: Though the United States, the Soviet Un-
ion, and various West European states and organizations stated their disapproval of
stance the acquisition of statehood is much more questionable and, arguably, essen-
tially depends on recognition.173
Slovenias and Croatias unilateral secessions would, arguably, ultimately depend
on recognition by the international community.174 However, recognition on 8 Octo-
ber 1991 was not certain. Caplan noted: As much as the Slovenes may have wished
and hoped for EC recognition, it was really not until the EC Council of Ministers
meeting of 16 December [1991] that they would be assured of it.175
Caplan argues that, if one reads history of this period backwards from its nal
denouement, the uncertainty is less apparent.176 Arguably, this is what the Badinter
Commission did when it subsequently held that Slovenia and Croatia became states
on 8 October 1991. It was the opinion of the Badinter Commission, delivered on 29
November 1991,177 which established the universally-accepted authority stating that
the SFRY was in the process of dissolution.
The opinions of the Badinter Commission were formally not legally binding178
and were not entirely followed by EC member states. Nevertheless, they importantly
shaped the state practice of the entire international community and, after such a
nding of the Badinter Commission, it was not disputed that the SFRY was a case of
dissolution. Such a view was adopted even by the Security Council.179 The Badinter
Commission therefore provided for a universally-adopted authority that dissolution,
rather than attempts at unilateral secession, was underway in the SFRY. This re-
moved the claim to territorial integrity of the SFRY and recognitions were ultimately
declaratory.180 The broader involvement of the EC, however, had signicant constitu-
tive eects.
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 Rai,
note above, , arguing that on October , people of Croatia possessed the
right to secession based on the remedial secession doctrine.
A remedial secession argument could, possibly, be advanced. Compare notes
above.
Richard Caplan, Europe and Recognition of New States in Yugoslavia (Cambridge: Cam-
bridge 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 eects of the ECs 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
b Montenegro
In 1992, Montenegro and Serbia founded the FRY.181 The self-government of both
constitutive republics was rmly rooted in the Constitution of the FRY.182 In the
period of the Miloevi regime, the Montenegrin self-governing organs did not con-
duct policies truly independent of Serbia and of the FRY. But nevertheless, after the
regime-change in October 2000,183 Montenegros constitutional status, the existence
of self-governing organs and the historical pedigree of territorial delimitation be-
tween Serbia and Montenegro184 made the Montenegrin push toward independence
much easier than this is the case in situations of unitary states. However, it needs to
be noted that the Constitution of the FRY did not foresee a mechanism for secession.
At the end of 2000, opinion polls suggested that independence was supported by
roughly fty percent of Montenegros population and expressly opposed by twenty-
ve percent.185 Another twenty-ve percent of Montenegros population did not have
an opinion on this question.186 This was a signicant dierence compared to 1998,
when independence was supported only by twenty-ve percent, rising to thirty per-
cent in 1999.187 Despite this increasing support for independence, a signicant share
of the population and inuential political parties determinately opposed the change
of Montenegros territorial status.188
With the experience of the armed conict associated with the dissolution of the
SFRY in mind, the international community feared that pro-independence pressures
could result in Montenegros unilateral declaration of secession and potentially lead
complicated issue, since its situation is dierent from yours. But youll be free in three
months. You just have to stick to your agreements. Caplan, note above, -,
quoting interview with Slovenian Foreign Minister Dimitrij Rupel.
See Constitution of the FRY ().
Each of the two republics had its own constitution and signicant powers in internal
matters as well as some limited competencies in foreign policy. See Constitution of the
FRY (), Articles and .
See Yugoslav Opposition Supporters Enter Parliament Building, CNN, October
. Accessed March . http://transcripts.cnn.com/TRANSCRIPTS///
bn..html.
Both Serbia and Montenegro were recognised as independent states at the Congress
of Berlin in . See Stevan Pavlowitch, Yugoslavia (London: Ernest Benn, ), .
Montenegros former international border, with only some minor modications, later
became its internal boundary in the Yugoslav state formations. See Peter Radan, The
Brake-up of Yugoslavia and International Law (London: Routledge, ), . In ,
this boundary was re-established as an international border.
See Crnogorsko javno mnjenje uoi referenduma ( December ). Accessed
March . http://www.aimpress.ch/dyn/pubs/archive/data//--pubs-
pod.htm.
Ibid.
Ibid.
Ibid.
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 signicantly diered 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 fed-
eration 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 pro-
vided 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, es-
pecially the United Nations Security Council Resolution 1244, shall only apply to the state
of Serbia as a successor.
The member-state which resorts to the right to secession shall not inherit the right to
international personality and all disputes shall be solved between the successor-state and
the seceded state.
In case that both states, based on the referendum procedure, opt for a change of the
state-status or independence, the disputable questions of succession shall be regulated in a
process analogical to the case of the former Socialist Federative Republic of Yugoslavia.194
This article indicates the transitional nature of the SUSM and reects the fact that
the creation of this state was a political compromise and the political reality was
The International Crisis Group Brieng No. , Montenegros Independence Drive (

December ), .
Ibid.
Constitution of the SUSM (), Article .
Ibid. Article .
The state union had only ve common ministries: internal aairs, defence, international
economic aairs, domestic economic aairs and human and minority rights. Ibid. Arti-
cles . The Constitution further specied 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 authors own).
clearly expressed: Article 60 evidently acknowledged that Montenegro (not Serbia)

was the federal unit likely to seek independence.
While Article 60 specically demanded for the decision on the future status to
be taken at referendum, its rules remained undened. These again became subject
to EU involvement. The EU imposed the Independence Referendum Act, which re-
quired that secession be conrmed by a majority of fty-ve percent of votes cast,
under the condition of participation of at least fty percent plus one vote of those
eligible to vote.195 The required majority was probably based on opinion polls sug-
gesting 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 fty-ve 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 fty and fty-ve per-
cent.198 In such a circumstance:
Montenegros 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 dissolu-
tion of the FRY already prior to Montenegros 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
dierent, the eect was in many respects similar to the case of the SFRY the claim
to territorial integrity of the parent state was removed and Montenegros 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 Of-
cial Gazette of the Republic of Montenegro No. / (March , ), Article .
See note above.
Svet ministara dravne zajednice Srbija i Crna Gora, Direkcija za informisanje (May
, ) Accessed March . http://www.info.gov.yu/saveznavlada/list_detalj.
php?tid=&idteksta=.
International Crisis Group, Brieng No. , Montenegros Referendum (May , ), .
Ibid.
Declaration of Independence of the Republic of Montenegro, The Ocial Gazette of the
Republic of Montenegro No. / ( June ).
GA Res. /, UN Doc. A/RES// ( June ).
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 eects.
c East Timor
The history of foreign rule of East Timor has been thoroughly examined elsewhere.202
For the purpose of this chapter it should suce to recall that after the Portuguese
colonial administration left East Timor, on 7 December 1975, Indonesia occupied the
territory, claiming, to be eecting East Timorese self-determination.203 In Portu-
gals understanding, however, East Timor was not properly decolonised and, conse-
quently, Portugal still regarded itself as an administering power.204 Such views were
also expressed by the UN organs.205 Importantly, East Timor remained on the list of
Non-Self-Governing territories.206 Further, Portugal continued to assert its formal
ties to East Timor throughout the occupation, notably by bringing a case about East
Timor against Australia to the ICJ in 1991.207
See generally Bilveer Singh, East Timor, Indonesia and the World: Myths and Reali-
ties (Singapore: Singapore Institute of International Aairs, ); Heike Krieger and
Dietrich Rauschning East Timor and the International Community: Basic Documents
(Cambridge: Cambridge University Press, ); John Taylor, East Timor: The Price of
Freedom (); Paul Hainsworth and Stephen McCloskey, The East Timor Question:
The Struggle for Independence from Indonesia (London: I. B. Tauris, ); Ian Martin,
Self-determination in East Timor: The United Nations, the Ballot, and International
Intervention (Boulder and London: Lynne Rienner, ).
Ralph Wilde, International Territorial Administration: How Trusteeship and the Civi-
lizing Mission Never Went Away (Oxford: Oxford University Press, ), .
Ibid. .
SC Res. , UN Doc. S/RES/ ( December ), paras. . A similar view was
previously expressed by GA Res. (XXX), UN Doc. A/RES/ ( December
); SC Res. , UN Doc. S/RES/ ( April ), especially paras and . GA Res.
/, UN Doc. A/RES// ( December ); GA Res. /, UN Doc. A/RES//
( November ), GA Res. /, UN Doc. A/RES// ( December ); GA Res.
/, UN Doc. A/RES// ( November ); GA Res. /, UN Doc. A/RES//
( November ), GA Res. /, UN Doc. A/RES// ( November ).
See Wilde, note above, -.
Ibid. . For more on the East Timor Case see Iain Scobbie, The Presence of an Absent
Third: Procedural Aspects of the East Timor Case, International Law and the Question
of East Timor (London and Leiden: Catholic Institute for International Relations and
International Platform of Jurists for East Timor, ), ; Roger Clark, The Sub-
stance of the East Timor Case in the ICJ, International Law and the Question of East
Timor (London and Leiden: Catholic Institute for International Relations and Interna-
tional Platform of Jurists for East Timor, ), ; Gerry Simpson, The Politics of
Self-Determination in the Case Concerning East Timor, in International Law and the
Question of East Timor (London and Leiden: Catholic Institute for International Rela-
tions and International Platform of Jurists for East Timor, ), .
In 1999, the new Indonesian leadership indicated that it would be willing to dis-
cuss the future legal status of East Timor.208 On 30 August 1999, upon an agreement
between Indonesia and Portugal,209 a referendum on the future status of the territory
was held. At the referendum, which was supervised by the UN mission,210 the people
of East Timor overwhelmingly rejected an autonomy arrangement within Indonesia
and set the course toward independence.211 This decision led to an outbreak of vio-
lence, initiated by Indonesian forces.212 Subsequently, the Security Council, acting
under Chapter VII, on 15 September 1999, adopted Resolution 1264, which, inter
alia, authorised the establishment of a multinational force in the territory of East
Timor.213
On 25 October 1999, the Security Council, acting under Chapter VII, adopted
Resolution 1272, with which it established, a United Nations Transitional Adminis-
tration in East Timor (UNTAET), which will be endowed with overall responsibility
for the administration of East Timor and will be empowered to exercise all legisla-
tive and executive authority, including the administration of justice.214 Resolution
1272 in its preamble also rearmed respect for the sovereignty and territorial in-
tegrity of Indonesia.215 This resolution was a reminiscent of Resolution 1244 and it
was commonly argued that it, appeared to have been written by simply replacing
the word Kosovo from Resolution 1244 with East Timor.216 The international ter-
ritorial administration put in place in Kosovo thus obviously became the role model
for East Timor. Yet the search for the nal status in East Timor went in a dierent
direction than it did in Kosovo.
Indeed, Indonesia had obliged itself that, in case the East Timorese people chose
independence at referendum, it would, take the constitutional steps necessary to
terminate its links with East Timor.217 Unlike in the example of Kosovo, the consent
of the parent state was formally given. Subsequently, East Timors course to indepen-
dence was also armed in Security Council Resolution 1338, adopted on 31 January
Ibid.
See UN Doc. S// ( May ), especially Annex I.
See SC Res. , UN Doc. S/RES/ ( May ), especially paras. , , .
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 .
2001.218 After the declaration of independence on 20 May 2002,219 the new state was
admitted to the UN on 27 September 2002.220
East Timor was therefore a situation which had a colonial origin, yet its indepen-
dence was not a matter of decolonisation. Indeed, the real question was not indepen-
dence from Portugal but independence from Indonesia. International involvement
into this state creation was signicant and took place on the level of the UN. While
the international territorial administration, established by the Security Council un-
der Chapter VII of the UN Charter, established a legal situation similar to the one
put in place by Resolution 1244 in Kosovo, the mode of state creation in East Timor
was dierent. Indeed, there existed consent of the parent state as well as armation
by a Security Councils resolution (albeit not adopted under Chapter VII).
After East Timor proclaimed independence, there was no reason to dispute its
statehood. While recognitions in such a circumstance may be regarded as purely de-
claratory, the international involvement into the state creation itself had constitutive
eects. International involvement successfully procured Indonesias consent and the
international territorial administration, whose actions are attributable to the UN,221
supervised the transition toward statehood.
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 signicant international involvement into state creation. In all
three circumstances international involvement removed the claim to territorial in-
tegrity. 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 eorts 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 involve-
ment 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 Timors
path by trying to secure approval of its parent state and conrm Kosovos path to
independence with a Security Council Resolution. After this attempt failed, a group
of states decided to implement the Ahtisaari Plan without Serbias 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-pacic/.stm.
GA Res. /, UN Doc. A/RES// ( September ).
Bothe and Marauhn, note above, .
See above, Chapter .c.
dence with the prior approval of a number of states, which also promised recogni-
tion in advance.223 However, unlike in other post-1990 state creations, the compet-
ing claim to territorial integrity was not removed and the emergence of the state of
Kosovo was not a matter of fact. Rather, some of the recognising states believed that
informally practised collective recognition and prior approval of the declaration of
independence could produce such a fact.
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 circum-
stances of a unilateral secession, recognition can have constitutive eects.224 Fur-
ther, 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 dicult to dierentiate between recognition and an attempt at collective state
creation.225 As argued above, this may be the case where a competing claim to ter-
ritorial integrity exists and/or it is not clear whether an entity meets the statehood
criteria.226 However, recognition of Kosovo, though granted by a signicant number
of states, is far from universal.
It is therefore questionable whether the attempt at state creation was success-
ful. Furthermore, it may well be that recognition did not solve but actually created
the ambiguity in regard to Kosovos legal status.227 Before the number of recogni-
tions 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 dicult
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 re-
quirements might not be completed.229 It is, however, questionable if this necessar-
ily 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 A airs Press
Release, March . Accessed January . http://www.sweden.gov.se/sb/
d//a/.
Colin Warbrick, Kosovo: The Declaration of Independence, International and Com-
parative Law Quarterly (): .
state exists, not the belief that an entity has good prospects of becoming a state in
the future.
What is, nevertheless, signicant in this particular situation is that the recogni-
tion texts commonly refer to Kosovos commitment to the Ahtisaari Plan and to
Resolution 1244,230 both of which severely curtail Kosovos sovereignty and design
the legal regime for a protected state.231 Since restraints on sovereignty were not
accepted by Kosovo voluntarily but in order to comply with the pre-existing legal
regime governing its territory,232 Kosovo, arguably, did not emerge as an independent
state but rather as an internationally protected state. This is what many recogni-
tion texts seem to acknowledge and, therefore, it is indeed questionable whether
the recognising states (or at least some of them) have recognised Kosovo as a fully
independent state,
One explanation could therefore be that the recognising states generally recog-
nise Kosovo as a protected state, with an international personality sui generis, but
not as a fully sovereign state. Such a conclusion is, however, not without diculties,
as recognition texts nevertheless refer to recognition of Kosovo as a state without
any adjectives which would imply that these are actually not full state recognitions.
Further, the status of a protected state does not necessarily imply that an entity is
not a state. Indeed:
[T]he exercise of delegated powers pursuant to protectorate arrangements is not incon-

sistent 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 inuence over the exercise of its foreign aairs.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 prob-
lem of the (non-)independence of Kosovos 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 Kosovos 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 Unit-
ed Kingdom. Accessed January . http: //www.number.gov.uk/Page; Ger-
many. Accessed January . http://www.bundesregierung.de/nn_/Content/DE/
Pressemitteilungen/BPA///--anerkennung-des-kosovo.html, Switzerland.
Accessed January . http://www.eda.admin.ch/eda/en/home/recent/media/single.
html?id=, Canada. Accessed january, . http://w.international.gc.ca/min-
pub/Publication.aspx?lang=eng&publication_id=&docnum=.
See above, Chapter .b.
See notes - above.
Although seventy two states have granted recognition and some of the recognis-
ing states obviously attempted to create the state of Kosovo through recognition and
political involvement prior to the Declaration of Independence, for now it remains
unclear whether the state creation has been successful. On the one hand, recognition
has not been universally granted, but, on the other, it was not collectively withheld.
Kosovo may be considered an internationally protected state. Although such a status
does not per se imply that Kosovo is not a state, the legal arrangement governing its
territory makes it doubtful whether Kosovo has a full international personality.
7 Conclusion
Kosovo declared independence upon the prior approval of a number of states, which
also promised recognition in advance. But there was no approval of the parent state
and this makes Kosovos Declaration of Independence unilateral under international
law.
There are strong reasons to conclude that from the aspect of international law,
unilateral secession is not per se illegal.234 This also follows from paragraph 81 of the
Kosovo Opinion. Yet it is very unlikely that it would result in a new state creation. In
the UN Charter era, states seem to give preference to the observance of the principle
of territorial integrity of other states. Despite the relatively high number of new state
creations after the end of the Cold War, in this period no new state has managed
to emerge when there existed a competing claim to territorial integrity by its par-
ent state. It remains questionable whether Kosovo is an exception to this rule and
whether parallels could be drawn to Bangladesh which, arguably, remains the only
successful unilateral secession in the UN Charter era.
There exist doubts of whether Kosovo meets the statehood criteria but entities
that did not satisfy them have become states before. There are also doubts regarding
the legality of the state creation but recognition was not collectively withheld. Views
on the legality of its creation dier and there is no universally accepted interpreta-
tion on whether there exists a collective duty to withhold recognition. Kosovo is thus
a situation in which the declaratory theory of recognition faces its limits.
Is Kosovo a state? If so, would it be a state without the recognitions which have
been granted? If recognition is always declaratory, why should be Kosovo considered
a state now, if it was not after the Declaration of Independence in 1991? The FRYs
claim to territorial integrity existed then and Serbias claim to territorial integrity
exists now. The government which declared independence in 1991 was not the ef-
fective government of Kosovo. The government which declared independence in
2008 was not an independent government of Kosovo. Similar legal considerations
to Kosovos status of a state under international law therefore existed in 1991 as exist
now. Notably, however, after the declaration of independence in 1991, recognition
was granted only by Albania, while after the 2008 Declaration of Independence rec-
ognition has been granted by seventy two states.
See note above.

The most probable answer is that in the case of Kosovo an informally practised
collective recognition aimed to have the eects of a collective state creation. The
problem, however, is that the new state creation is not acknowledged by the entire
international community. To put it dierently, if recognition has constitutive eects,
are seventy two recognitions enough for a state creation? Whose and how many rec-
ognitions are in such circumstances necessary for an entity to be considered a state?
On the other hand, how many and whose withholdings of recognition are necessary
that an entity is not considered a state?
The argument that Kosovos statehood has not been consolidated might have
some merit,235 all the more so because Kosovos statehood does not seem to be dis-
puted only on the basis of the absence of the consent of the parent state and lack of
universally-granted recognition. It is also obvious that Kosovo does not satisfy all of
the statehood criteria and that it was created not as a fully sovereign but rather as
a protected state. The recognition texts of a number of the recognising states seem
to acknowledge the legal situation, which leads to serious doubts regarding Kosovos
statehood. One interpretation could therefore be that the informally practised col-
lective recognition did not attempt to create a fully sovereign state but rather an in-
ternationally protected state. It is questionable whether such a state can be deemed
to have full international personality. But such a conclusion is somewhat risky as the
recognising states nevertheless refer to recognition of Kosovo as a state and not as a
non-fully sovereign entity with an international personality sui generis. Further, even
protected states may still be considered states.
It is not possible to answer the question of whether the attempt at informal state
creation through recognition has successfully created a state. At the same time it
cannot be ignored that for many states Kosovo is a state (albeit with signicant re-
straints on its independence). After Kosovo declared independence in 1991 and after
it was put under international territorial administration in 1999, there was no doubt
that Kosovo was not a state. Yet, after a signicant number of recognitions, following
the Declaration of Independence in 2008, it is at least debatable whether Kosovo is
a state. The view that it is a state needs to be seriously considered. The shift in per-
ception of Kosovos legal status owes predominantly to recognition and to broader
international involvement in the Declaration of Independence.
See note above.

III.
Kosovo and Self-Determination
and Minority Rights
Chapter 6 Self-Determination and Minority
Protection after Kosovo
HELEN QUANE
1 Introduction
Kosovos Declaration of Independence1 is often viewed as the nal phase in a process
that began with the violent break up of the former Yugoslavia. Opinion is divided,
however, on its legal signicance. For some states, Kosovo establishes a dangerous
precedent especially for frozen conicts in other parts of the globe. In particular, the
unilateral decision to declare Kosovo independent and its subsequent recognition by
72 states2 is seen as undermining the principles of state sovereignty and territorial
integrity in international law and potentially encouraging secessionist movements
elsewhere.3 For other states, Kosovo establishes no wider precedent because of its
unique character stemming from a range of factors including the war and ethnic
cleansing in the territory in 1998-1999, the extended period of international admin-
istration and the ongoing role envisaged for the international community post-in-
dependence.4 Viewed simultaneously as a negative precedent and a sui generis case,
it may be some time before the international community arrives at a consensus on
the issue. While the International Court of Justice has ruled that the Declaration is
not prohibited by international law,5 it is doubtful whether this Advisory Opinion in
itself will forge a consensus.6 Instead, attention has shifted back to the political arena
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 re-
spect 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 ).
182 III. Kosovo and Self-Determination and Minority Rights
with the General Assembly welcoming the proposed dialogue between the parties
which is to be facilitated by the European Union.7
The present chapter explores the signicance of the Kosovo case-study from the
particular perspective of the right to self-determination and minority protection.
In doing so, it avoids the tendency to focus exclusively on the Declaration of Inde-
pendence and the international response to it. While these events are undoubtedly
important and merit detailed analysis, arguably they represent but one phase in the
Kosovo case-study. It is submitted that there are three distinct though inter-related
phases in the international communitys response to Kosovo and each one has its
own signicance in terms of the development of international law on self-determi-
nation and minority protection. Broadly speaking, the rst phase comprises the pe-
riod up to but not including the adoption of UN Security Council Resolution 1244 on
10 June 1999. The distinctive feature of this phase is the international communitys
emphasis on halting the repression and humanitarian crisis in Kosovo while pro-
moting a settlement that would ensure meaningful self-administration8 for Kosovo
within the Federal Republic of Yugoslavia (FRY). The second phase begins with the
mandate for the international administration of Kosovo, encompasses the develop-
ment of the Kosovo Provisional Institutions of Self-Government and concludes with
the failure of the parties to reach agreement on the status of the territory during
talks brokered by Martti Ahtisaari, the UN Secretary-Generals Special Envoy for
the Future Status of Kosovo. The international communitys approach to autonomy
for Kosovo and to the territorial integrity of the FRY during this period distinguishes
it from the approach adopted during the previous phase. The third phase begins with
the Comprehensive Proposal for the Kosovo Status Settlement circulated by Martti
Ahtisaari in February 2007 and continues to the present. The distinguishing fea-
tures of this phase are the increasing support among some though not all sections of
the international community for an independent Kosovo, the willingness of several
states to address explicitly the issue of self-determination both at the level of general
principle and in the specic context of Kosovo, and the ICJs Advisory Opinion that
the Declaration of Independence did not violate international law. Although each of
these three phases is distinct, there is a clear inter-relation between them and they
may be viewed as part of a continuum in terms of Kosovos potential contribution to
the development of self-determination and minority protection in international law.
One also has to acknowledge that Kosovo cannot be viewed in isolation. In as-
sessing its legal signicance, it must be placed in its wider context. Over the past
ten years, there have been far-reaching developments concerning the right to self-
determination and minority protection at the global level. It is now possible to refer
to a legal right to internal self-determination where previously it was a rather under-
developed and uncertain component of the self-determination principle in interna-
tional law.9 More radically, there has been some departure from the purely territorial
See UN General Assembly Resolution / adopted by consensus.

See, e.g. SC Res. , UN Doc. S/RES/ ( March ).
See, further, Helen Quane, Rights in Conict? The Rationale and Implications of Using
Human Rights in Conict Prevention Strategies, Virginia Journal of International Law
Chapter 6, Helen Quane Self-Determination and Minority Protection after Kosovo 183
concept of a people that has prevailed in international law with the recognition that
indigenous peoples have a right to self-determination,10 thereby opening up a host of
complex issues not least about how one can reconcile competing self-determination
claims within states. Further, the general consensus among states that indigenous
peoples have a right to internal though not external self-determination11 also departs
from the right to self-determination as traditionally conceived as it limits the range
of options available to the people concerned. Related to this, are interesting though
still tentative developments concerning the interplay between self-determination
and minority protection that call into question the dichotomy between a people
and a minority and their respective rights. All these developments have a certain
resonance in the Kosovo case-study. Consequently, in assessing its legal signicance
one has to do so against the backdrop of these developments including the extent
to which the state practice on Kosovo is consistent with these developments and/or
attempts to extend them in new directions so that it can be regarded as contribut-
ing to the evolution of the right to self-determination and minority protection in
international law.
2 Phase I: The International Communitys 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. ( Septem-
ber ).
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/ ( Septem-
ber ), 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 Aairs of Countries of South-Eastern Europe concerning the situation in
Kosovo, Soa, March , paras. , ; Conclusions of the Council of the European
Union on the crisis in Kosovo, April , UN Doc. S// ( April ); and
Cardi 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. .
to independence for Kosovo is signicant for several reasons.15 In terms of the right
to external self-determination, it rearms that this right cannot be invoked simply
on the grounds of being a distinct and territorially cohesive ethnic group that wishes
to secede from an existing state. This is consistent with the territorial concept of a
people that traditionally has been adopted in international law and which denes a
people as the entire population of a state or colony. It is also signicant in terms of
gauging international support for the existence of a remedial right to external self-
determination.16 The continuing adherence to the principle of territorial integrity
even in the face of a level of repression that prompted sections of the international
community to intervene militarily in the FRY17 as well as the absence of any discus-
sion of remedial self-determination within the international community tends to
call into question the existence of such a right at least at this point in time.18
Throughout this period, the EU, e.g. remained, rmly opposed to independence. See
Cardi European Council: Declaration on Kosovo, June . The International Con-
tact Group comprising the United States, the Russian Federation, the United Kingdom,
Italy, France and Germany also refused to support independence. See, e.g. Statement on
Kosovo adopted by members of the Contact Group on July , para. . Reecting
the international consensus at the time, the UN Secretary-General urged the Kosovo
Albanian leadership to negotiate a, peaceful and mutually acceptable settlement short
of independence. See Report of the Secretary-General prepared pursuant to Resolution
() of the Security Council, UN Doc. S// ( June ), para. (empha-
sis added). See also, debates within the Security Council, UN Doc. S/PV. ( Octo-
ber ) (Japan) and within the General Assembly, UN Doc. A//PV. ( December
), , , (Albania, China, India).
See, generally, James Crawford, The Creation of States in International Law, nd Edi-
tion (Oxford: Clarendon Press, ), -; Alain Pellet, Legal Opinion on Certain
Questions of International Law Raised by the Reference, in Self-Determination in Inter-
national Law: Quebec and Lessons Learned, ed. Anne F. Bayefsky (The Hague/London/
Boston: Kluwer Law International, ), -; and Yash Ghai, Public Participation
and Minorities (London: Minority Rights Group International, ), . On the exist-
ence of a right to remedial self-determination in the specic context of Kosovo, see
Marc Weller, Negotiating the Final Status of Kosovo, Chaillot Paper No. (),
-; and Jurgen Friedrich, UNMIK in Kosovo: Struggling with Uncertainty, Max
Planck Yearbook of United Nations Law (): -.
NATO air strikes against the FRY began on March and were justied on the
grounds of halting the violence, supporting the completion of negotiations on a politi-
cal settlement for Kosovo and thereby avoiding a humanitarian catastrophe: see Letter
dated January from the Secretary General of NATO to the President of the FRY,
UN Doc. S// ( February ). The air strikes were controversial and some
questioned their legality. See, e.g. Communique issued by the Rio Group, March
, UN Doc. S// ( March ).
International practice seems to have evolved on this point: see, further, the text accom-
panying notes - and - below.
Admittedly, the international community did not preclude any negotiated out-
come provided it was acceptable to both parties.19 This is hardly surprising and en-
tirely in keeping with conventional interpretations of self-determination whereby
the entire population of a state has the right to change its international status, for
example, by agreeing to break up into separate states. If it had been possible to reach
a negotiated settlement, even one that recognized Kosovo independence, then by
virtue of its consensual nature it would have been no dierent to the break up of
Czechoslovakia and could have been accommodated within the existing framework
of the right to external self-determination under international law. Consequently,
in terms of the external dimension to self-determination, state practice during this
rst phase would appear to have simply conrmed the existing contours of the right.
In terms of the internal dimension to self-determination, the picture is more
complex. The international communitys repeated calls for a negotiated settlement
based on a substantial measure of autonomy for Kosovo20 might be interpreted as
recognition of a form of internal self-determination for the population of Kosovo
particularly when viewed in the light of developments then taking place at the global
level. At this time, there was a growing consensus that autonomy could be regarded
as a form of self-determination at least within the specic context of self-determina-
tion for indigenous peoples.21 However, even this rather modest proposal for a fairly
self-contained category of peoples remained controversial and it was to be almost
another ten years before agreement could be reached on the issue by the interna-
tional community. On balance it is doubtful whether, at this point in time, the in-
ternational communitys support for autonomy for Kosovo can be equated with rec-
ognition of a limited right to internal self-determination for the Kosovo Albanians.
A review of state practice at this time suggests that, rather than reecting any
a priori right of the Kosovo Albanians, there was a pragmatic, functional basis to
international support for autonomy. As the UN Secretary General observed, it was
necessary to provide the people of Kosovo with the degree of autonomy that is con-
sistent with their need to live their lives free from terror and violence. What form
such autonomy will take will depend not only on the wishes of the Kosovars, but also
on the actions of the Yugoslav authorities.22 This functional approach to autonomy
can also be gleaned from the numerous references to OSCE standards in the calls for
a negotiated settlement.23 An examination of the OSCE documents reveals that au-
tonomy was regarded as one possible means of protecting minorities and was viewed
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 ), op-
erative para. ; Statement issued by Members of the Contact Group, Bonn, March
within the framework of minority protection rather than self-determination.24

Further, the OSCEs references to autonomous administrations corresponding to
the specic historical and territorial circumstances25 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 Yugo-
slavia until its autonomy was removed unconstitutionally by the Serbian authori-
ties. Viewed in this context, the international communitys 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 reecting 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 rst phase oers 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 interna-
tional involvement in any negotiations for a settlement during this phase30 took on
, para. ; and Joint Declaration of the Ministers of Foreign Aairs 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 Di-
mension to the CSCE, , para. ; and Report of the CSCE Meeting of Experts on
National Minorities, Geneva, , Part IV. Indeed, it is signicant 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 aairs, and ongo-
ing abuses of basic human rights are pushing member states of the OSCE to accept any
kind of solution to the conict which will assure the end of violence and prevent a pos-
sible spillover of the conict. 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 pur-
suant 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. .
some signicance 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 signicant de-
velopments 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 Ser-
bia. 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 reects
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 protect-
ing, national, cultural, religious, and linguistic identities, of the dierent 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 per-
sons 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 com-
munities 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 sacriced in the interests of the groups 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 Am-
bassador Werner Wnendt, Head of OSCE Mission in Kosovo to the OSCE Parliamen-
tary 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, Reli-
gious and Linguistic Minorities .
Rambouillet Accords, Framework, Article I, para. .
Ibid. Chapter I, Article VII, para. .
Ibid. para. (e).
should encourage a dynamic approach to the development of a communitys iden-

tity. In terms of the content of these community rights, they reect 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 interna-
tional minority rights instruments.
To conclude on this rst phase, it seems that the emphasis on the traditional ap-
proach 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 interna-
tional communitys response to the Kosovo conict. While its adoption was undoubt-
edly motivated by a range of political considerations,43 its drafting and subsequent
implementation have important ramications for the right to self-determination in
international law. Invoking Chapter VII of the UN Charter,44 it authorized the estab-
lishment 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 Secretary-
General (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).
ers gradually being devolved to them by the SRSG in line with Resolution 1244s
commitment to self-government for Kosovo. While the international community
initially took the view that the PISG should meet certain conditions before status
negotiation could begin (Standards before Status)48 it subsequently abandoned that
approach when it became evident that ongoing uncertainty about Kosovos status
was fuelling political instability and impeding economic development in the re-
gion.49 Adopting a Standards with Status approach,50 the status negotiations began
under the auspices of the international community but reached a stalemate with
neither party prepared to concede on the vital issue of sovereignty over the terri-
tory. Each of these developments and the associated state practice is signicant in
assessing the extent to which this phase contributed to expanding the right to self-
determination and minority protection in international law.
As the UN Human Rights Committee has observed, internal self-determina-
tion includes the right of a people, to choose the form of their constitution and
government.51 Viewed in this light, one can see that Resolution 1244 impacts on the
right to internal self-determination in at least two ways. If one adopts the traditional
territorial concept of a people, then it is clear that it impacts on the right of the en-
tire population of the FRY to determine their own internal system of government.
At the very least, the Resolution precludes them from establishing a unitary system
of government or indeed the opportunity of governing over the entire territory of
the state. Admittedly, the Resolution does at one point welcome the FRYs agree-
ment to the international presence in Kosovo which might suggest a consensual
basis to the deployment of the international presence that would be consistent with
the traditional interpretation of internal self-determination.52 However, it seems that
the international presence was not dependent on the consent of the FRY. No Status
Agreement was concluded prior to the deployment of the international civil pres-
ence and suggestions that one should be concluded were rejected by the SRSG on
the ground that UNMIKs mandate was based on Chapter VII of the Charter rather
than on the FRYs consent.53 This unilateral action by the Security Council suggests
that limits can be imposed on the right to self-determination where it is necessary in
the interests of international peace and security.
See, e.g. discussions within the Security Council on this issue, UN Docs. S/PV. (
April ), ( July ), ( September ), ( December ),
( February ), ( April ), ( July ), ( August ),
( September ), ( October ), ( December ), (
December ), and ( April ).
See, e.g. debates within the Security Council, UN Docs. S/PV. ( February ),
( May ), and ( October ).
See, e.g. UN Doc. S/PV. ( October ).
General Comment No. : The right to participate in public aairs, voting rights and the
right of equal access to public service (Article ): UN Doc. CCPR/C//Rev./Add. (
July ).
Operative para. .
See UN Doc. S/PV. ( August ).
Resolution 1244 is also signicant in terms of its possible contribution to the de-
velopment of a right to internal self-determination for the people of Kosovo54 par-
ticularly when it is viewed in the light of the relevant state practice and global trends.
While its endorsement of a substantial measure of autonomy for Kosovo may be
seen as a continuation of the international communitys policy during the previous
phase, there are some important dierences. It is notable, for example, that there is
a shift in language from supporting meaningful self-administration55 to support-
ing self-government56 in Kosovo. It is the rst time that the term was used in any
of the Security Council resolutions on Kosovo. Given the caution displayed in the
wording of the various UN Resolutions on Kosovo57 and the association of the term
self-government with self-determination in the UN Charter58 and in the Declara-
tion on the Rights of Indigenous Peoples,59 it is questionable whether one can dis-
miss this change purely as one of semantics. More importantly, there seems to have
been some willingness to recognize a right to self-determination for the people of
Kosovo.60 Even Serbia seems to have implicitly recognized such a right albeit one
limited in scope. Referring to Kosovos right to substantial self-government, it ar-
gued against recognizing Kosovo independence as it would, transform the right to
See also, Andreas Zimmermann and Carsten Stahn, Yugoslav Territory, United Na-
tions Trusteeship or Sovereign State? Reections on the Current and Future Legal Sta-
tus of Kosovo, Nordic Journal of International Law (): -, and Friedrich,
note , , albeit for dierent reasons to those canvassed here. For a dierent view,
see, e.g. Alice Lacourt, The Approach of the UK, Chatham House International Law
Discussion Group Meeting, April , available from www.chathamhouse.org/
events/-/type/past/year/. Last accessed October .
See Security Council Resolutions , UN Doc. S/RES/ ( March ), operative
para.; , UN Doc. S/RES/ ( September ), preambular para. ; and ,
UN Doc. S/RES/ ( October ), preambular para. .
See Security Council Resolution , UN Doc. S/RES/ ( June ), operative
para. (a).
See, e.g. the debates concerning the UN General Assembly Resolution on the Situation
of Human Rights in Kosovo, UN Doc. A//PV. ( December ), (Albania).
See, e.g. Article of the UN Charter and the discussion of this provision in Helen
Quane, The UN and the Evolving Right to Self-Determination, International and
Comparative Law Quarterly (): -, -. Indeed, Afghanistan subse-
quently referred to Article in its recognition of an independent Kosovo. See, State-
ment on the Recognition of Independence of Kosovo, February , available from
www.Kosovothanksyou.com. Last accessed October . The analogy between Ko-
sovo and Trust Territories and by implication their right to self-determination is also
evident in the comparison drawn at one point between Kosovo, East Timor and West-
ern Sahara although this provoked sharp criticism from the Russian Federation: see UN
Docs. S/PV. ( April ), and S/PV. ( October ).
See Article of the Declaration.
See, e.g. the references to self-determination in the debates in the Security Council, UN
Docs. S/PV. ( November ), (Albania); S/PV. ( December ), (Ma-
laysia); S/PV. ( June ), (Pakistan); and S/PV. ( May ), (Switzerland).
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 assess-
ing the signicance 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 in-
terests were most directly aected, 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 self-
determination for groups within states. Of particular signicance 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 implementa-
tion of the right and possible implications for territorial integrity delayed the adop-
tion 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 reection of the par-
ticular constitutional traditions of the states concerned or the consequences of spe-
cic conicts. It is interesting to note, however, one states 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 condence of an evolving right to internal self-determination for indig-
enous peoples. The emergence of a similar right for other groups is still contentious
although the Kosovo case-study may be a signicant precedent in contributing to its
development.
Underpinning these global developments is the idea that there should be some
objective justication for the recognition of even a limited right to self-determina-
tion 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 Reections 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-Herzegovi-
na); CCPR/C/LIE// (Liechtenstein); CCPR/C/RUS// (Russian Federation);
CCPR/C/GEO// (Georgia); and CCPR/C/SDN/ (Sudan) concerning non-Indige-
nous Peoples.
Canadas Responses to the List of Issues, Presentation of the Fifth Report on the Inter-
national 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 .
identity of the group and/or their fundamental rights and freedoms.65 The interna-
tional communitys approach to Kosovo during this second phase can be seen to
echo these developments.66 To the extent that there was support for some form of
self-determination for the people of Kosovo, it seems to have been attributed at least
in part to the level of repression they had experienced in the 1990s as well as the on-
going legacy of that repression. While this may be seen to uphold the idea of a reme-
dial right to self-determination canvassed in sections of the academic literature,67 it
departs from it in one material respect. This functional approach does not envisage
any automatic right to external self-determination for the repressed group. Instead
the emphasis during this phase was on autonomy for Kosovo and facilitating ne-
gotiations between the parties with a view to reaching an agreement on its future
status. While some states have recently taken the view that this was not incompat-
ible with the recognition of a remedial right to external self-determination for the
Kosovo Albanians,68 it is signicant that no reference was made to such a right either
by these states or others at the time. On balance, it seems that while the people of
Kosovo might have had a right to self-government it did not extend automatically to
a right to determine unilaterally the status of the territory during this second phase.
In this regard, the state practice suggests a more graduated approach to self-de-
termination. It occupies a middle ground between absolute adherence to the prin-
ciple of territorial integrity and an automatic right to secession whenever the state
oppresses a distinct ethnic, linguistic or religious group within its territory. For this
reason, it may attract more state support and have greater prospects of being re-
ected in international law than the claim to remedial self-determination has had
to date.69 There are also strong policy considerations in favour of such an approach,
notably, its ability to operate as an ongoing incentive for state compliance with in-
ternational human rights standards while its underlying rationale enables a distinc-
tion to be drawn between protecting the legitimate interests of minority groups
and encouraging ethno-nationalist secessionist claims. By focussing on the eec-
tive protection of the group concerned through internal political structures rather
than automatically sanctioning the break up of the state, it can also go some way
to reducing the risks of fragmentation and instability at the international level. At
the same time, one has to consider the time element in assessing the utility of this
See, e.g. Report of the Working Group Established in Accordance with Commission
on Human Rights Resolution /, UN Docs. E/CN.// () and CCPR/C/
GEO// () (Georgia) concerning Indigenous Peoples and other ethnic groups
respectively.
See, e.g. UN Doc. S/PV. ( February ), and the Statement of the Contact
Group on Kosovo, January , available from www.securitycouncilreport.org/atf/
cf/BBFCFB-D-EC-CD-CFEFFFFD/KosStatementin
LondonbytheContactGroupJan.pdf. Last ac-
cessed October .
See note above.
See notes - below.
See note below.
approach. It is signicant that while autonomy might have been the original goal of
many Kosovo Albanians, as time went by and the level of repression worsened, this
shifted to the goal of complete independence for Kosovo.70 Concerns about the risks
of encouraging secessionist claims by recognizing even a limited right to internal
self-determination, especially in the light of the subsequent Declaration of Indepen-
dence, suggest that states will proceed cautiously. Nevertheless, state practice during
this phase suggests a useful pathway for developing a more nuanced approach to
self-determination in contrast to the traditional zero-sum approach that has pre-
vailed to date and which has done little to facility the prevention or resolution of
internal conicts.
In terms of a right to external self-determination for the people of Kosovo, it is
possible to discern at least three approaches to this issue in the state practice during
this period. Several states were willing to recognize explicitly a right to indepen-
dence for the people of Kosovo.71 Signicantly, even for these states, there was no
question of this right automatically trumping the right to self-determination of the
rest of the population of the state. As one state observed, independence for Kosovo
could not be imposed on Serbia.72 For these states, the implementation of the right
required negotiations between the parties. This is consistent with current trends
where the emphasis is on good faith negotiations to ensure the eective implemen-
tation of concurrent self-determination rights.73 It is submitted that there are strong
policy considerations in favour of embedding such an approach in international law
and abandoning the traditional approach to self-determination. By asserting that
the will of the people is paramount, the latter has done much to encourage abso-
lute approaches to self-determination and little to facilitate compromise in resolving
conicts arising from competing self-determination claims.
The vast majority of states, however, made no reference to the right to self-deter-
mination during the debates on Kosovos future status. Instead, the tendency was to
refer to the need for a political settlement that was acceptable to or that reected
the wishes of the population of Kosovo.74 It is questionable whether these references
can be taken as implicit recognition of a right to external self-determination for the
people of Kosovo. Detailed analysis of these references reveals that they reect two
distinct approaches, each of which limit the potential precedent value of the Kosovo
See, e.g. OSCE, Monthly Report on the Situation in Kosovo pursuant to the requirements
set out in the UN Security Council Resolutions and , UN Doc. S// (
February ).
See UN Docs. S/PV. ( November ), (Albania), S/PV. ( December
), (Malaysia), S/PV. ( June ), (Pakistan), and S/PV. ( May ),
(Switzerland).
See, e.g. UN Doc. S/PV. ( May ), (Switzerland).
See, e.g. Article of the UN Declaration on the Rights of Indigenous Peoples interpreted
in the context of preambular paras. -.
See, e.g. the views expressed by the UK, US, Contact Group, France, Argentina, Den-
mark and the Russian Federation: UN Docs. S/PV. ( February ), S/PV.
( September ), S/PV. ( December ), and S/PV. ( June ).
situation at least during this particular period. The rst approach is epitomised by
the Russian Federation which, while stressing the need for a solution acceptable to
the people of Kosovo, also stressed the need to respect the territorial integrity of
Serbia without precluding any negotiated outcome.75 This emphasis on a consensual
basis to any settlement while adhering to the principle of territorial integrity as a
default position reects the traditional approach to self-determination. According to
this approach, the entire population of the state can agree to the break up of the state
but in the absence of such an agreement the territorial integrity of the state is main-
tained. Consequently, the Russian Federations approach simply rearms the right
to external self-determination as it has traditionally existed in international law. The
second approach is epitomised by the United States which, while stressing its sup-
port for a negotiated settlement, seemed willing to countenance independence for
Kosovo in the event of negotiations failing.76 This change of policy was justied on
the ground that the Kosovo situation was sui generis due to the extended period
of international administration, the events surrounding the SFRYs disintegration,
and the ethnic cleansing and humanitarian crisis of 1998/1999.77 It also reected the
widespread perception that the ongoing uncertainty about Kosovos status was un-
sustainable and was fuelling instability in the region. Viewed in context, this partic-
ular state practice appears more as an ad hoc response to the exigencies of a specic
situation rather than any attempt to expand the right to external self-determination
beyond its current connes.
In terms of minority protection, several trends are discernible. During this phase,
minority protection focussed exclusively on the Serbian and other non-Albanian
communities in Kosovo in contrast with the previous phase where the emphasis was
on protecting Kosovo Albanians within the FRY.78 Clearly, this shift in focus was
necessitated by the changed circumstances on the ground. As the majority commu-
nity in Kosovo, ethnic Albanians were now in control of the Provisional Institutions
of Self-Government and no longer in need of the type of minority guarantees that
See UN Doc. S/PV. ( February ). See also, the views expressed by China and
Argentina: UN Docs. S/PV. ( February ), S/PV. ( September ), and
S/PV. ( December ).
See, e.g. UN Docs. S/PV. ( February ), S/PV. ( September ), and S/
PV. ( December ).
See, e.g. the views of the UK, France, Slovakia, US, and the EU: UN Docs. S/PV. (
February ), S/PV. ( September ), and S/PV. ( December ).
The sui generis character of Kosovo was rejected by Serbia and Montenegro, the Russian
Federation and the Ukraine. See, UN Docs. S/PV. ( February ), S/PV. (
September ), and S/PV. ( December ).
See, e.g. UN Docs. S/PV. ( May ), S/PV. ( June ), S/PV. ( July
), S/PV. ( July ), S/PV. ( January ), S/PV. ( April ),
S/PV. ( August ), S/PV. ( February ), S/PV. ( June ), S/
PV. ( September ), S/PV. ( December ), and Guiding Principles of
the Contact Group for a Settlement of the Status of Kosovo, November . Available
from www.unosek.org/docref/ContactGroup-TenGuidingprinci-
plesforAhtisaari.pdf. Last accessed October .
could be found in the Rambouillet Accords. Even so, this development still has some
signicance beyond Kosovo especially when viewed in the wider global context. To
the extent that the self-governing institutions could be viewed as a form of internal
self-determination for the Kosovo Albanians, they suggest that there can be some
movement between the concepts of a people and a minority so that a group formerly
classied as a minority could become a people at least for certain self-determina-
tion purposes. Indeed, if Kosovo had remained part of Serbia, the Kosovo Albanians
could have been simultaneously a people with a right to internal self-determination
in Kosovo and a minority entitled to minority protection within the wider Serbian
State. This erosion of the traditional dichotomy between a people and a minority
is also evident in the Concluding Observations of some of the UN Human Rights
Treaty Monitoring Bodies where reference is made simultaneously to the right to
self-determination and to minority rights in dealing with the plight of indigenous
peoples.79 Admittedly, these developments are still tentative but arguably they are
an inevitable consequence of any recognition that groups within states have a right
to some form of internal self-determination. As such a right evolves in international
law there will be a clear need to revisit the traditional distinction between a people
and a minority and the scope of their respective rights.80 In this regard, Kosovo is a
useful precedent in helping to reinforce the need for such a review.
One can also see some changes in the nature and scope of the rights aorded to
communities during this particular phase. This is evident from the Constitutional
Framework for Provisional Self-Government adopted in May 2001. Chapter 4 of this
document outlines the rights of communities and their members. Once again, the
content of these rights reect some of the highest international standards in the
sphere of minority protection. However, unlike the Rambouillet Accords, they allow
more discretion in their implementation particularly in the area of public funding for
minority activities.81 In this respect, the Constitutional Framework is more in keep-
ing with the approach usually adopted in international minority rights instruments.
There is also a subtle shift in emphasis in terms of the nature of the rights protected.
In contrast with the clear armation of collective rights in the Rambouillet Accords
where the rights of communities are recognized as separate and distinct from those
of their members, the Constitutional Framework simply refers to the rights of com-
munities and their members.82 The implication is that the rights, identical in their
See, e.g. the Concluding Observations and Recommendations of the Human Rights
Committee: UN Docs. GAOR Supplement No. , , (Canada, Mexico),
GAOR Supplement No. , , (Norway, Australia), GAOR Supplement No. ,
(Sweden), GAOR Supplement No. , (Finland), GAOR Supplement No. ,
, , (Canada, Norway, United States), GAOR Supplement No. , (Chile),
CCPR/C/BRA/CO/, para. (Brazil), and CCPR/C/PAN/CO/, (Panama).
This dichotomy is also being challenged in the literature: see, e.g. Friedrich, note , ,
and Peter Radan, The Break-up of Yugoslavia and International Law (London and New
York: Routledge, ), .
See Chapter .
Para. ..
content, can be exercised concurrently. This means that an individual is not depen-
dent on the group for the enjoyment of their rights. In the present context, this is
signicant as it can reduce the risk of fuelling centrifugal tendencies associated with
collective rights. It is also more in line with the relevant European standards in this
area83 and their emphasis on protecting the rights of persons belonging to a minority
rather than the minority as a group. This shift in emphasis is not surprising given
the increasing recognition that Kosovos future, and indeed that of Serbia, lay within
the European Union84 and that any political settlement should reect common Eu-
ropean standards. At a more general level, it also suggests that minority protection
in Europe will continue to be seen within the framework of individual rather than
collective rights even in situations of intense inter-communal conict.
What emerges during this period is that more conventional approaches to mi-
nority protection were counterbalanced by signicant developments concerning the
right to self-determination. Undoubtedly, the most important was the existence of
some support for a right to internal self-determination for the people of Kosovo
particularly when set against the backdrop of global developments in this area. It
suggests that international law may be moving towards a more gradated approach to
self-determination, one that recognizes that there can be objective justication for
recognizing a limited form of self-determination for particular groups within states.
Of course, there will be risks associated with such an approach notably that it could
encourage secessionist claims. Nevertheless, with the passage of time, it is possible
that this concept of a more limited form of self-determination will gain as much cur-
rency as that which existed during the decolonization period and this could go some
way to tempering unrealistic expectations.
At the same time, one has to recognize that Kosovo both supports and under-
mines these global developments. Viewed solely within the framework of this second
phase, it supports them by suggesting a limited right to self-determination for the
people of Kosovo while rejecting any unilateral right of secession. However, Kosovos
Declaration of Independence in the third and nal phase may simply reinforce state
concerns about the risks associated with this approach and impede its development
in international law in respect of groups other than indigenous peoples. Clearly, the
manner in which one analyses state practice during this third phase will have im-
portant implications not only for the right to external self-determination but also for
global developments concerning the right to internal self-determination.
4 Phase III: The Ahtisaari Plan, the Declaration of Independence and the
International Response
With deadlock in the negotiations and Kosovos existing status unsustainable,
the Secretary Generals Special Envoy adopted what became known as the Ahti-
This was recognized explicitly in Part IV of the Standards for Kosovo document.
See UN Doc. S/PV. ( February ). See also UN Docs. S/PV. ( December
), (UK), and S/PV. ( February ).
saari Plan.85 Its endorsement of independence for Kosovo, albeit subject to certain
conditions,86 marked the beginning of the third phase in the international com-
munitys engagement in Kosovo. The Plan was accepted by Kosovo but rejected by
Serbia.87 Following other unsuccessful attempts to reach a settlement,88 the Declara-
tion of Independence was adopted on 17 February 2008.89 Drawing heavily on the
Ahtisaari Plan, the Declaration contained a series of unilateral and legally binding
commitments concerning Kosovos international status, structure of government,
protection of minority communities and the maintenance of an international pres-
ence post-independence.90 This, combined with the entry into force of a new Con-
stitution in June 2008,91 necessitated a fundamental reorganization of the structure
and functions of UNMIK.92 These actions have deeply divided the international
community. To date, 72 States have recognized Kosovo independence93 with the re-
mainder either condemning it94 or staying silent on the issue. With the international
See Comprehensive Proposal for the Kosovo Status Settlement, UN Doc. S///
Add. ( February ).
Ibid. especially Articles ., ., ., , ., -.
See Report of the EU/US/Russia Troika on Kosovo, December . Available from
www.ico.kos.org/pdf/ReportoftheEU-US-RussiaTroikaonKo-
sovo.pdf. Last accessed October . The international community was similarly
divided. For example, while the Russian Federation rejected the Plan, NATO, the EU,
Peru, France, Ghana, Panama and the UK supported it: see UN Doc. S/PV. ( May
).
The EU/US/Russia Troika on Kosovo attempted to facilitate a negotiated settlement be-
tween September and December . See Statement of Troika Meeting with Belgrade
and Pristina, New York, September , Report of the EU/US/Russia Troika on Ko-
sovo, December , available from www.ico-kos.org/?id=. Last accessed October
.
For a discussion of the Declaration, see, Colin Warbrick, Kosovo: the Declaration of
Independence, International and Comparative Law Quarterly (): .
See in particular, preambular para. , operative paras. -, , .
Available from www.assembly-kosova.org/?cid=,,. Last accessed October .
See UN Docs. S/PV. ( June ); S/PV. ( July ); and S/PV. (
November ).
The UK, France, US, Turkey, Albania, Afghanistan, Costa Rica, Australia, Senegal,
Latvia, Germany, Estonia, Italy, Denmark, Luxembourg, Peru, Belgium, Poland, Swit-
zerland, Austria, Ireland, Sweden, Netherlands, Iceland, Slovenia, Finland, Japan, Can-
ada, Monaco, Hungary, Croatia, Bulgaria, Liechenstein, South Korea, Norway, Marshall
Islands, Nauru, Burkina Faso, Lithuania, San Marino, Czech Republic, Liberia, Sierra
Leone, Colombia, Belize, Samoa, Portugal, Montenegro, Macedonia, UAE, Malaysia,
Micronesia, Panama, the Maldives and Honduras.
See, e.g. UN Doc. S/PV. ( June ), (Russian Federation, Serbia). Others ex-
pressed concerns about the unilateral declaration of independence. See, e.g. UN Docs.
S/PV. ( November ), (South Africa); and A//PV. ( October ), (Co-
moros).
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 Assemblys request for an Advisory Opinion on whether the Dec-
laration was in accordance with international law.96 Following the Courts 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 signicance for the
right to external self-determination and, to a lesser extent, the right to internal self-
determination 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 recogni-
tion statements as well as statements made during the relevant Security Council
and General Assembly debates. The rst 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 ter-
ritorial 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 conicts, could escalate, frozen conicts
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).
ture of both Serbia and Kosovo lies within Europe, it is possible that pressure will be
brought to bear on the parties to agree, at least nominally, to a nal status solution.
Indeed, General Assembly Resolution 64/298 may lend some support to this view. At
the very least, it suggests that there is still some prospect of a negotiated settlement.
If this prospect ever comes to fruition, then it will be possible to accommodate the
Kosovo precedent within the existing framework of international law whereby the
entire population of the state has the right to external self-determination and can
consent to the break up of the territory into separate states.
The third approach is the recognition of Kosovo as an independent state by over
one third of the worlds states. Admittedly, the fact that many of these states have
stressed the sui generis character of the Kosovo situation might be seen to limit
its signicance in terms of any development of the right to self-determination.101
On closer analysis, this is not necessarily the case. Comments about the sui generis
nature of Kosovo related only to the question of independence for the territory. As
such, they cannot be seen to limit the precedent value of Kosovo in terms of any
development of the right to internal self-determination particularly during the pre-
vious phase. Indeed, the fact that just under two-thirds of states have refrained from
recognizing Kosovo may go some way to addressing concerns that recognition of a
right to internal self-determination for groups within states will lead automatically
to recognition of a right to external self-determination for these groups.
Nevertheless, comments about the sui generis nature of Kosovo might be seen
to undermine its signicance in terms of the right to external self-determination.
Again, this would not be an entirely accurate reection of the relevant state practice.
This is because there were several variations in how the states viewed this issue.
For many states, Kosovo was unique because of the prolonged period of interna-
tional administration, the implications of the disintegration of the SFRY, the ethnic
cleansing and the humanitarian crisis.102 Others referred to the abolition of Kosovos
See, e.g. UN Docs. S.PV. ( May ), (US, UK); A//PV. ( October ),

(France); Announcement by the Minister of Foreign Aairs of the Republic of Latvia
on recognition of Kosovos 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.inter-
national.gc.ca/media/a/news-communiques//.aspx?lang=en; Press Release
by the Hungarian government, March , available from www.mfa.gov.hu; Lithua-
nian 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/a/news-communiques//.aspx?lang=en.
Last accessed October .
constitutional rights and the UN process for a negotiated settlement to distinguish

Kosovo from other conicts in South Ossetia, Abkhazia and the Moldovan Repub-
lic 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 self-
determination.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 cir-
cumstances of Kosovo that balance had been struck in favour of the self-determina-
tion principle. Others simply referred to a right to self-determination for the people
of Kosovo without any qualication about its sui generis character.105 It follows that
one cannot dismiss the signicance of this state practice. At the same time, one has
to be careful about overstating its importance given the extent of this practice. Nev-
ertheless, 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 insignicant 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 fundamen-
tal 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 signicance of the interests at stake. For example,
states no longer conned 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 Aairs for the
Maldives, available from www.kosovothanksyou.com. See also Statement by the Minis-
ter of Foreign Aairs for Sweden, March , available from www.kosovothanksyou.
com. Last accessed October .
See, e.g. Afghanistans Statement on the Recognition of Independence of Kosovo,
February , available from www.kosovothanksyou.com; Statement of Prime Min-
ister of Albania on Recognition of Independence of Kosovo, available www.kosovoth-
anksyou.com; Statement by Burkina Faso, April , available from www.kosovoth-
anksyou.com; and Press Statement of UAE government, available from www.wam.org.
ae. Last accessed October .
law and under Resolution 1244.106 Issues that had not preoccupied the international
community in the past, such as the identity of the authors of the Declaration, ac-
quired a heightened importance which was reected in the Written Statements.107
In the present context, however, what is signicant is what these Written Statements
have to say about the right to self-determination.
Of the 36 states that submitted Written Statements to the Court, the overwhelm-
ing majority made some reference to the right to self-determination, usually in terms
of its application to Kosovo but also at the level of general principle.108 A review
of the Written Statements submitted by these states suggests several distinct ap-
proaches to the right. The rst asserts that there is no right to independence outside
the colonial context.109 This implies a continuing adherence to the traditional in-
terpretation of self-determination whereby only colonial peoples (and peoples or-
ganised as states) have a right to external self-determination in international law. It
leaves open the question of internal self-determination and whether options short
of independence could be contemplated for groups within independent states. The
Written Statements suggest two main approaches to this question. The rst is that
groups within states exercise the right to self-determination in conjunction with the
entire population of the state.110 Again, this adheres to the traditional interpretation
of the right whereby the entire population of a state or colony has a right to inter-
nal as well as external self-determination. According to the second approach, there
is a right to some form of internal self-determination for groups within states.111
Given the number and range of states concerned this suggests an important shift in
thinking about the right to internal self-determination in international law. While
there is a general consensus that indigenous peoples have a limited right to internal
self-determination,112 these Written Statements represent the rst substantial body
See, e.g. Written Statements of United Kingdom, United States, France, Germany, Ja-
pan, Russian Federation and Serbia (April ).
See, e.g. Written Statements of Austria, Estonia, Germany and the United Kingdom
(April ).
Two-thirds of states commented on self-determination (Bolivia, Serbia, Romania, the
Slovak Republic, Cyprus, Iran, Estonia, Finland, Denmark, Slovenia, Latvia, Germany,
Netherlands, Poland, Russian Federation, Spain, Brazil, Switzerland, Ireland, Albania,
Argentina, Azerbaijan, the United Kingdom and the Maldives).
See Written Statement of the United Kingdom, April , and Written Statement of
Bolivia, July , and Serbia, July .
See Written Statement of Romania, April and Written Statement of Serbia, July
.
See Written Statements of Estonia, Finland, Germany, Netherlands, Poland and the Slo-
vak Republic (April ). It is implicit in the Written Statements of Cyprus, April
, and Iran, April , and in the Written Statements of those states that linked
remedial self-determination to a denial of internal self-determination for groups within
states (note below). It is also implicit in the Written Statements of Russia, April
, and Brazil, April , where there is some recognition that Resolution
embodies a right to internal self-determination for the Kosovo Albanians.
See, e.g. the UN Declaration on the Rights of Indigenous Peoples, Articles , , .
of state practice to explicitly recognize such a right outside the indigenous context.
Although it would be premature to regard these statements as reecting customary
international law, one cannot deny their potential signicance in terms of its future
development.
For several States, this right to internal self-determination was linked to a reme-
dial right to external self-determination.113 There was a clear functional basis to this
approach with one state observing that the absence of a right to external self-deter-
mination would render internal self-determination meaningless in practice since
there would be no remedy for a group which is not granted the self-determination
that may be due to it under international law.114 There was also a consensus that this
remedial right to self-determination was an ultima ratio.115 Consequently, for these
states there was no question of groups within states having an automatic right to ex-
ternal self-determination even in the event of serious repression. Instead, there was
a general consensus that several conditions of a substantive and procedural nature
must be satised prior to the exercise of a remedial right to external self-determina-
tion. While there were some slight variations in the formulation of these conditions,
there was general agreement on the need for a systematic and serious denial of inter-
nal self-determination for the group concerned, the existence of gross human rights
violations either as an integral part of this denial of internal self-determination or
supplementary to it, as well as the absence of any viable alternative remedy.116 Other
See Written Statements of Estonia, Finland, Germany, Netherlands, Poland, Switzer-

land, Ireland (April ) and Written Statement of Albania, July . In contrast
to the approach of the ICJ which seemed to distinguish between external self-determi-
nation 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 conning it instead to truly
extreme circumstances, such as an outright armed attack by the parent State, threaten-
ing 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 self-
determination 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-deter-
mination (Written Statements of Estonia, Finland, Germany, Netherlands, Switzerland
(April ) and Written Statement of Albania, July ), () grave violations of in-
ternational 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
states were explicit in their rejection of such a right and cited the dearth of relevant
state practice to question its existence in international law.117 Given the widely diver-
gent views expressed, it is dicult to argue that such a right currently exists in inter-
national law or even that there are any prospects of it emerging in the near future. At
the same time, the number and identity of the states that supported a remedial right
to self-determination might suggest that one cannot exclude the possibility of such a
right developing under regional customary international law. 118
In terms of the application of the right in Kosovo, states adopted a variety of posi-
tions. Some regarded Resolution 1244 as embodying a form of internal self-determi-
nation for the Kosovo Albanians.119 This provides further support for the tentative
conclusions outlined in respect of the international practice during the previous
phase.120 Others went further and asserted a right to external self-determination for
the people of Kosovo.121 For most, this was due to the repression the Kosovo Alba-
nians experienced during the 1990s as well as the denial of any prospect of internal
self-determination within the FRY/Serbia.122 On closer examination, it seems that
there were several variations on this position. The rst was simply that the right to
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, Roma-
nia, Spain (April ) and Written Statements of Bolivia, July , and Serbia,
July .
Signicantly, 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 develop-
ment 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 .
Signicantly, 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, Switzer-
land and Ireland (April ).
self-determination in combination with other factors123 justied the Declaration of

Independence. This leaves open the question whether, in the absence of these addi-
tional factors, the right would have justied 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 re-
gion, the international administration and the UN led negotiations on a nal settle-
ment, render Kosovo an abnormal124 or sui generis125 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 situa-
tion in Kosovo justied 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 Assemblys request.131 It demonstrates, as
the Court itself observed, that there were radically dierent views on the issue.132
Consequently, it is dicult 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 Courts Advisory Opinion did little to clarify the issue. Adopting a nar-
row interpretation of the General Assemblys question, the Court conned 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 State-
ment of the Maldives, April .
See Written Statement of Finland, April .
See Written Statement of Estonia, April . The Maldives and Slovenia also clas-
sied Kosovo as a sui generis case: see Written Statement of Slovenia April and
Written Statement of the Maldives, April .
See Written Statement of Finland, April , and Written Statement of the Nether-
lands, April .
See Written Statement of Estonia, April and Written Statement of the Maldives,
April .
See Written Statements of Argentina, Cyprus, Iran, Serbia, Romania, Russia (April
), and Written Statement of Bolivia, July and Written Statement of Spain,
July .
See Written Statement of France, April .
See Written Statement of Romania, April , and Written Statement of Russia,
April .
In respect of the latter, see, e.g. Written Statement of Austria, April .
See note above, para. .
Ibid. paras. -.
that general international law contained no applicable prohibition134 and that as the
authors of the Declaration were not acting as a Provisional Institution of Self-Gov-
ernment they were not bound by Resolution 1244.135 Given the manner in which the
Court interpreted the question, it took the view that any examination of whether
Kosovo had a right to declare independence by virtue of the self-determination prin-
ciple was beyond its scope. Instead, the Court simply noted that radically dierent
views had been expressed during the course of the proceedings on the scope of ex-
ternal self-determination and remedial secession.136 The Courts reasoning on this
and other issues is problematic.137 On this point, it may be criticised for its failure to
respond to the argument that the Declaration violated international law because it
was contrary to the right of self-determination of the population of Serbia taken as
a whole.138 At the very least, this required a more in-depth analysis of the safeguard
clause in General Assembly Resolution 2625 (XXV) than appears in the Advisory
Opinion, particularly when one bears in mind that at the time of its drafting the pro-
vision was formulated in the specic context of the Implementation of the principle
[of self-determination] by a state with respect to peoples within its jurisdiction.139
The clear implication from this and subsequent state practice140 is that groups within
states should exercise self-determination with due respect for the principle of ter-
ritorial integrity unless one takes the position that there is a remedial right to self-
determination in international law. It follows that the issue of whether the people of
Kosovo had a remedial right to self-determination was not beyond the scope of the
General Assemblys question but was quite possibly central to it.
In contrast to the Courts approach, there was some discussion of the right to
self-determination in the Separate Opinions of Judges Canado Trinidade and Yusuf
and in the Dissenting Opinion of Judge Koroma. For Judge Koroma, the principle of
territorial integrity always took priority over the right to self-determination which
Ibid. paras. -.
Ibid. paras. -.
Ibid. paras. -.
See, e.g. the criticism of the Court for its adjustment of the question (Judge Koroma,
Dissenting Opinion, Kosovo Opinion, para. , and Vice-President Tomka, Declaration,
ibid. para. ) and for its failure to address the question of self-determination (Judge
Simma, Declaration, ibid. para. , and Judge Sepulveda-Amor, Separate Opinion, ibid.
para. ).
See Written Statement of Cyprus, April .
See Report of the Special Committee on Principles of International Law Concerning
Friendly Relations and Co-operation among States: GAOR, Session, Supplement No.
(A/), (emphasis added).
See, e.g. the UN Declaration on the Rights of Indigenous Peoples, Article which
provides that Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any action which would dismember or
impair, totally or in part, the territorial integrity of sovereign and independent States
(emphasis added).
eectively precludes any remedial right to external self-determination.141 The other

judges took a dierent view. Both accepted some form of remedial external self-
determination 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
specic situation, taking into account the historical context.144 These included the
existence of persecution, discrimination, the denial of autonomous political struc-
tures 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 conict 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 Indepen-
dence 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 indepen-
dence for Kosovo or by limiting its signicance by classifying it as a sui generis situ-
ation.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 oers the prospect of a more workable approach to self-
determination in situations of intense inter-communal conict.
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 Kosovos independence has no basis in a legal right to external self-
determination is supported by several academics. See, e.g. Ralph Wilde, Kosovo In-
dependence, Recognition and International Law, Chatham House International Law
Discussion Group Meeting, April , available from www.chathamhouse.org/
events/-/type/past/year/. Last accessed October .
Reviewing the state practice on Kosovo, one is struck by the references to the need
to balance state sovereignty and territorial integrity with other interests such as self-
determination, human security and the general interests of humanity.149 Reference
was made, for example, to the need to attach equal weight to Kosovos claim to
self-determination and Serbias claim to maintain its territorial integrity.150 Indeed,
one state went so far as to assert that in recent decades, the right to self-determina-
tion as a human right has been given precedence over the principle of territorial
integrity.151 These comments suggest that the traditional, rather absolute adherence
to the principles of state sovereignty and territorial integrity may need to be revisited
in the light of other international values.152 Arguably in these and similar comments
one can nd the seeds of a new normative approach to external self-determination.
At the level of general principle, one can argue that a balance needs to be struck
between claims to self-determination and claims to preserving territorial integrity.
On the basis of general state practice and state practice during all three phases of the
international communitys engagement in Kosovo, it is clear that in most instances
that balance will be struck in favour of territorial integrity. Hence, the starting point
in any reconciliation of the two sets of claims is that prima facie priority will be
given to preserving territorial integrity. Clearly, there are sound policy arguments
underpinning this position notably that it helps prevent fragmentation and instabil-
ity within the international community. However, it can be argued that the principle
of territorial integrity should not automatically and in all cases trump self-determi-
nation claims. It is submitted that where certain substantive and procedural criteria
are met, self-determination claims should take priority over the territorial integrity
principle. At this rather general level of abstraction, Kosovo could be regarded as
a precedent to the extent that it contributes to the development of a new norm of
universal application.
In the practical application of this general principle, one can appreciate the sui
generis nature of Kosovo. Arguably, there were several factors of a substantive and
procedural nature in the Kosovo situation that weakened the traditional adherence
to the territorial integrity principle at least among certain sections of the interna-
tional community. The treatment of the Kosovo Albanians during the 1990s was
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 Aairs recog-
nizing 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 tak-
ing into account its other principles although it does not refer explicitly to the principle
of self-determination.
clearly the most important of these substantive factors.153 Within the present norma-
tive framework, it should be noted that this treatment is not seen as activating any
automatic remedial right to external self-determination.154 Instead, it is seen as one
factor, albeit an important one, in weakening the international communitys com-
mitment to the territorial integrity principle. In practical terms, this precludes any
unilateral right of secession. From a policy perspective, this should operate as a pow-
erful incentive for states to comply with their human rights obligations,155 avoid the
fragmentation of states and the associated risks to international peace and stability,
and open up the potential for a negotiated settlement. Arguably, the latter was also
an important factor in the Kosovo situation. Once the conict in Kosovo reached
the point of threatening international peace and security in the late 1990s there was
a consensus that the international community needed to be involved in any negotia-
tions on its status.156 Admittedly, in the absence of Chapter VII actions, states may
be hesitant about international involvement in internal disputes if it is seen as the
rst step in a slippery slope to sanctioning the break up of their territory. However,
there are several features to the Kosovo case that may go some way to addressing
their concerns. First, there was universal support for a negotiated settlement and
attempts by the Kosovo authorities to resolve the matter unilaterally have not been
endorsed by the overwhelming majority of states. Second, even among states that
have recognized Kosovo, there is some suggestion that recognition was due partly to
the failure of Serbia to engage in good faith negotiations.157
Consequently, in this third phase, it is possible to identify a tentative framework
for the future development of the right to external self-determination. At the level of
general principle, Kosovo may demonstrate that while the international community
in most instances will adhere to the territorial integrity principle it will not do so in
all cases and there may be exceptional or sui generis circumstances where the prin-
ciple must give way to that of self-determination. In this respect, one can argue that
The fact that the international community had to establish an interim administration
for the territory serves to underline the severity of the treatment and its ongoing eects.
On the signicance of Kosovo in terms of a right to remedial self-determination, see
further, Weller, note above, -, and Friedrich, note above, -. Unlike the
approaches adopted by both Weller and Friedrich, the normative framework outlined in
the present chapter emphasizes that there is no automaticity in the sense that repres-
sion does not give rise automatically to a unilateral right to external self-determination
or secession.
It would mean that the territorial integrity of a state would be preserved where, e.g. a
new government genuinely attempts to redress past abuses.
See, e.g. Statement by the Contact Group, London, January , paras. -, UN Doc.
S// ( January ).
See, e.g. the UKs position that Serbias actions in adopting a new Constitution that
unilaterally asserted control over Kosovo made successful negotiations impossible as it
eectively tied the hands of the Serbian negotiators to the point where they could not
even agree on the EUs status neutral proposal. According to the UK, this represented
the last chance for a negotiated settlement and it was one that was rejected by Serbia,
UN Doc. A//PV. ( October ).
Kosovo may establish a precedent although not necessarily a negative one for con-
icts elsewhere. This is because where territorial integrity gives way to self-determi-
nation, a set of substantive and procedural requirements must be met. There is no
exhaustive list of such requirements and in this respect the unique combination of
factors in Kosovo characterises it as a sui generis case. However, at a basic minimum,
the substantive criteria would include a severe denial of internal self-determination
as well as grave human rights violations. Once this is established, procedural re-
quirements would include negotiations between the parties conducted in good faith
within a reasonable timescale and quite probably with the active involvement of the
international community.158
d The Significance of International Practice during this Third Phase for the
Development of Minority Protection
In terms of minority protection, international practice during this nal phase rein-
forces the tendency to bring minority guarantees more into line with current inter-
national standards especially European standards. In addition to greater exibility
in implementation, minority guarantees are formulated purely within an individual
rights framework.159 Equally important is the signicance of these guarantees at
the global level. Reproducing the provisions on minority protection outlined in the
Ahtisaari Plan, the Declaration of Independence, in a fairly unusual move, arms
irrevocably that Kosovo is legally bound to comply with these provisions and that
all states are entitled to rely upon this Declaration.160 These internationally bind-
ing commitments have gone some way to addressing international concerns about
minority protection and to facilitating Kosovos entry into the international commu-
nity. This is clear from the recognition statements to date, many of which stressed
the importance of the minority guarantees.161 Indeed, some went so far as to suggest
The existence of these procedural requirements also distinguish the approach outlined
in the present chapter from the concept of remedial self-determination outlined, e.g. by
Weller and Friedrich, note above.
See, e.g. Article of the Ahtisaari Plan concerning the Rights of Communities and
Their Members which stipulates that: Inhabitants belonging to the same national or
ethnic, linguistic or religious group traditionally present on the territory of Kosovo
(hereinafter referred to as Communities) shall have specic rights (emphasis added).
For a discussion of these provisions, see, Rudiger Wolfrum, Kosovo: Some Thoughts
on its Future Status, in Multiculturalism and International Law, eds. Sienho Yee and
Jacques-Yvan Morin (Leiden, Boston: Martinus Nijho Publishers, ), -. Ar-
ticle of the Ahtisaari Plan was reproduced in Chapter III of the Kosovo Constitution.
See operative para. .
Norway noted in its recognition statement that the minority guarantees were binding
under international law: Press Release, March , available from www.kosovoth-
anksyou.com (last accessed October ). On the importance of the minority guar-
antees in the recognition statements, see further, e.g. Press Release Estonia recognizes
Republic of Kosovo, February , available from www.vm.ee/?q=en/node/ (last
accessed October ), Statement by the President of the Swiss Confederation,
that recognition was dependent on these guarantees.162 Notwithstanding the unilat-

eral 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 rec-
ognition of several Central and East European states was made dependent on their
acceptance of certain minority guarantees. On that occasion, they were justied
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 recog-
nition 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 conicts breaking out
then it was entitled to impose certain conditions on the new entity to prevent the
outbreak of such conicts. Whether one classies these conditions as an additional
requirement of statehood, an element in discretionary recognition policies, some de-
velopment 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
justicatory basis.
5 Conclusion
Attempts to classify Kosovo either as a dangerous precedent or as a sui generis situ-
ation do not sit easily with the relevant state practice. Arguably, they are a reection
of the international communitys current preoccupation with Kosovos Declaration
of independence and its implications for the principle of territorial integrity. They
do not reect the complex and evolving nature of the international communitys
February , available from www.kosovothanksyou.com (last accessed October

), and Press Release by Icelands Ministry of Foreign Aairs, March , avail-
able from www.kosovothanksyou.com (last accessed October ).
See, e.g. the U.K. Prime Ministers statement on February that: the decision
to recognize independence had depended on assurances that minorities within Kos-
ovo would be protected under any new administration, available from www.kosovoth-
anksyou.com (last accessed October ).
Indeed, this was mentioned explicitly in the statement to Luxembourgs Chamber of
Deputies on February , available from www.kosovothanksyou.com (last ac-
cessed October ). See also Press Release of the Irish Ministry for Foreign Aairs
( 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, -.
engagement with the territory and its signicance not only for the right to external
self-determination but also for the right to internal self-determination and minority
protection. The full signicance of this state practice only becomes apparent when
analysed during each of the distinct though inter-related phases in the international
response to Kosovo and within the wider framework of global developments con-
cerning self-determination and minority protection.
Kosovo has several important implications for the right to internal self-determi-
nation. At the very least, it suggests that limits can be imposed on this right in the
interests of peace and security. This much is evident from the drafting of Security
Council Resolution 1244. By establishing an international administration in Kosovo
under Chapter VII of the UN Charter, the Resolution limited the right of the entire
population of the FRY to determine their own internal structures of government. Far
more tentative, though equally signicant, is the support for some form of internal
self-determination for the people of Kosovo. In this respect, it echoes developments
at the global level concerning a right to internal self-determination for indigenous
peoples and the limited recognition of a similar right for other groups within states.
While the emergence of a legal right to internal self-determination for indigenous
peoples is at a far more advanced stage than for other groups, international practice
during the second and third phases of the international response to Kosovo may
contribute to the evolution of such a right for these other groups in the future.
There seems to be a common justicatory basis to these developments with rec-
ognition of some form of internal self-determination for groups within states being
based on the belief that it is necessary in order to protect the identity and/or funda-
mental rights and freedoms of these groups. While this is reminiscent of the con-
cept of a remedial right to self-determination, it departs from it in one fundamen-
tal respect. It does not envisage any automatic right to external self-determination.
Instead, it occupies a middle ground between absolute adherence to the territorial
integrity principle and the automatic break up of the state. As such, it leaves the way
open for a state to mend its ways and address the legitimate concerns of all sections
of its population while avoiding the risks of fragmentation and instability associated
with secession. Admittedly, Kosovos Declaration of Independence may be seen to
undermine its signicance in this respect. However, the fact that the vast majority of
states have not recognized Kosovos independence tends to reinforce the point that
recognition of a limited right to internal self-determination does not automatically
entail recognition of a more extensive right to external self-determination.
In terms of the right to external self-determination, it is far more dicult to draw
any denitive conclusions about Kosovos signicance. So far, there have been at
least four dierent approaches to Kosovos Declaration of Independence. Most in
their own way tend to reinforce the traditional approach to external self-determina-
tion. The rst regards the Declaration as a violation of international law thereby pre-
cluding any recognition of a legal right to external self-determination for the people
of Kosovo. The second stresses the need for continued negotiations and a consensual
basis to any nal settlement in line with the traditional approach to external self-
determination whereby the entire population of a state can agree, for example, to the
break up of that state. The third stresses the sui generis nature of Kosovo suggesting
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 exter-
nal 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 territori-
al 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 hu-
man rights violations. Once this is established, procedural conditions include nego-
tiations 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 evi-
dent in applying this normative framework to the specic 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 classies Kosovos independence, recognition seems to
have been conditional on it assuming certain internationally binding guarantees for
its minority communities. On the whole, these guarantees reect existing interna-
tional standards on minority protection with their emphasis on the individual na-
ture 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 rst phase of the international communitys response
to the conict. 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-deter-
mination and minority rights for indigenous peoples. As such, it calls into question
the rather rigid dichotomy that is traditionally drawn between peoples and minori-
ties 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 Self-
Determination:
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 gen-
erate great interest, not least because it represents a new generation of exercises by
peoples in self-determination.3 Kosovos unilateral move to secede territorially from
Serbia is quite remarkable because, in order to avoid wider system chaos, the major-
ity of international political and legal eorts in the post-1945 era have been devoted
to conning lawful exercises in self-determination to peoples inhabiting former
colonies or other non-self-governing territories.4 As Kosovo was a long-standing
province of southern Serbia, it did not qualify, even though the 1974 Yugoslav Con-
stitution granted the province the status of a highly-autonomous federal entity, with
representation in the federal institutions.5 When Kosovos 2008 UDI is viewed along-
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 As-
sembly 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: Mar-
tinus Nijho Publishers, ).
A position rather less than a full republic but much more than mere autonomy. Marc
Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Oxford Uni-
versity Press, ), .
side the continuing protest it has provoked from Serbia,6 it becomes clear that the
UDI by no means constituted a friendly exercise in secessionist self-determination.
On the other hand, Serbias self-restraint since that time, in not resorting to armed
force in response to this particular UDI, implies that Kosovos secession has so far,
at least - been accomplished peacefully.7
Kosovos recent bid for independence may constitute a highly controversial exer-
cise in self-determination, but the fact that its majority population decided to take
this drastic step does not make the UDI exercise historically unusual. Instead, the
action merely underscores another fact that of a recurring pattern in human be-
haviour which does not change. Whether or not the UDI ultimately attracts the
necessary degree of international legitimacy for Kosovo to attain statehood, the
secession provides support for a somewhat dierent proposition: that questions of
revolution, self-determination, and independence cannot be treated as having sim-
ple right or wrong answers, as to do so would only conate solutions with causes.
Inasmuch as self-determination holds a unique position in human aairs, and ap-
peals to its rhetoric convey a sense of aspiration, a more subtle calculus in analysis
is called for one which acknowledges the burdens and benets of dierentiation
as opposed to integration. Accordingly, should domestic mechanisms for managing
societal change not exist, entire regions can be destabilised by self-determination.
Such destabilisation occurs largely because appeals to self-determination facili-
tate the generation of gyroscopic-style forces, which are capable of resisting wid-
er, more centralising power. The term self-determination thus implies a desire to
promote the autonomous self outside of the control of others. Moreover, exercises
in self-determination by a people are as varied as the groups asserting the right,
and often, the term is used merely to communicate the desire of a people to rec-
tify or re-adjust certain social relationships between themselves and broader group-
ings. Accordingly, when the Serb nationalist leader Slobodan Miloevi engineered
amendments to Serbias Constitution in 1989 to revoke Kosovos local autonomy and
the minority rights of the provinces Albanian majority,8 the latter countered with a
quest for self-rule which ultimately would involve the formation of a shadow Koso-
vo government, an armed conict between Serb forces and the Kosovo Liberation
See, e.g. UN Doc. GA/AB/, Assembly, Fifth Committee, Meeting, June,

(Budget Committee proposal to reduce UNMIK funding opposed by Serbia, as contra-
dicting status-neutrality).
Dajena Kumbaro, Final Report. The Kosovo Crisis in an International Law Perspective:
Self-Determination, Territorial Integrity, and the NATO Intervention, (NATO Oce
of Information and Press, June, ), (reference to self-determination made con-
tinuously by Kosovo since ).
See, e.g. Letters dated March and March , from the Permanent Representa-
tives of the UK and the US, respectively, to the President of the Security Council (dis-
may expressed to Belgrade concerning repressive measures in Kosovo). Accessed
September . www.un.org/en/sc/repertoire/-/CHAPTER/Europe/___
European_E_KosovoandFederalRepublicofYugoslavia.pdf.
Chapter 7, Elizabeth Chadwick Post-World War 2 Exercises of Self-Determination: Peaceful, Friendly, and Other 215
Army, forceful external intervention by NATO,9 and the temporary takeover of the
province pursuant to action adopted by the Security Council under Chapter VII of
the UN Charter,10 and implemented by organisations as varied as the OSCE, the EC,
and numerous NGOs.
What also has made the Kosovo UDI so extraordinary an event is its context, in
that it occurred within a political environment created by the Constitutional Frame-
work envisioned in UN Security Council Resolution 1244 (1999). Coming after the
international use of force just highlighted, Resolution 1244 temporarily suspended
the exercise of Serbian sovereignty over Kosovo, and replaced it with an interim
international presence, pending negotiations towards a nal settlement on substan-
tial self-government for Kosovo.11 The temporary nature of this international pres-
ence, to manage and protect Kosovo under the Constitutional Framework, no doubt
prompted the 2008 UDI,12 which simultaneously threatened to destabilise the entire
Balkan region all over again after the dissolution wars of the 1990s in the former ter-
ritory of Yugoslavia.13 To help resolve the issue, the UN General Assembly at Serbias
request sought an advisory opinion from the International Court of Justice (ICJ) as
to the legality of the UDI in international law.14 The ICJ handed down its opinion
on 22 July 2010 as to the Accordance with International Law of the Unilateral Dec-
laration of Independence in Respect of Kosovo,15 and found that the UDI was not
prohibited by international law.
The conclusion was based on a majority of the Court nding that no general pro-
hibition exists in positive international law against declarations of independence,
nor did the majority nd any such prohibition in the international arrangements
provided specically for Kosovo. These conclusions were narrowly conned, how-
ever, and expressly side-stepped the twin parallel issues of entitlements to self-deter-
mination and rights of revolution.16 The ICJ majority thus implicitly acknowledged
the limits of law when ordering such human events as self-determination, particu-
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 ight of Kosovos 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 ).
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-determina-
tion as a main protection at the international level).
larly as the revolutionary potential inherent in the underlying principle of self-de-

termination ascribes to the principle an often unpredictable, political content which
even Cold War bi-polarity could not contain. On the contrary, as liberationist armed
conicts 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 in-
ternational 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 exibilities 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 vio-
lence in liberationist struggles in general, or to assist the rightful cause sought in
particular cases. As new alliance and resource opportunities arise, space is invari-
ably opened-up for peoples to generate sucient leverage to pursue alternative for-
mats 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 Assemblys 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 deect attention from the fundamental absence of international agreement re-
garding certain factual situations which cannot ever be prohibited or deterred by
law alone.
For the period -, see Patrick Brogan, World Conicts (London: Bloomsbury,
), Appendices, -.
See, e.g. Western State Terrorism, ed. Alexander George (Cambridge: Polity Press, );
Quincy Wright, Subversive Intervention, American Journal of International Law
(): .
See, e.g. UN Secretary General, Presenting Recommendations for Global Counter-Ter-
rorism Strategy to the General Assembly, UN Doc. SG/SM/, GA/, ( May
). Contrast Jude McCulloch and Sharon Pickering, Suppressing the Financing of
Terrorism: Proliferating State Crime, Eroding Censure and Extending Neo-Colonial-
ism, British Journal of Criminology (): .
See Background, etc., Draft Comprehensive Convention on International Terrorism,
accessed at Inventory of International Nonproliferation Organizations and Regimes,
Center for Nonproliferation Studies). Last updated May . http://cns.miis.edu/
inventory/pdfs/intlterr.pdf. Mahmoud Hmoud, Negotiating the Draft Comprehensive
Convention on International Terrorism: Major Bones of Contention, Journal of Inter-
national Criminal Justice (): .
The reference was permitted by UN Charter Articles and (). The UN Security
Council remains actively seized of the matter, making inapplicable both Charter Article
, and GA Resolution (V) of November . See Certain Expenses of the UN
() ICJ ( July).
As a result, overt shows of state support for one or other (r)evolutionary model
have become much more rare today, which in turn has produced a post-Cold War
(and post-9/11) UN seemingly less interested in preventing international disputes in
the rst place, than in resolving them peacefully or otherwise once they have
occurred. For example, when NATO launched air strikes against Serbia to force it
to halt its armed oensive against Kosovo, the UN General Secretary noted that,
however tragic it was when diplomacy failed, there were times when, the use of
force may be legitimate in the pursuit of peace.22 As for the recent ICJ Advisory
Opinion on Kosovos 2008 bid for independence, there is little doubt that the manner
in which the Court framed and determined the issues it deemed capable of adjudica-
tion will prove to be of great interest and controversy for some time to come, but it
must also be hoped that the ICJs opinion will prove to be persuasive far beyond the
more sterile analyses and criticisms which no doubt will greet it, such that the opin-
ion will ultimately assist in developing more eective international controls over
state behaviour in many contexts.
Inasmuch as this discussion is intended to contribute a few thoughts regarding
the underlying dynamics of exercises by peoples for their self-determination, and to
consider how those exercises are regarded today, an inclusive approach is adopted
to the relevance of self-determination in the case of Kosovo. The specic objective
is to examine and situate the peacefulness of the latters UDI within the wider fac-
tors which give rise to demands for system change. Specically, three extra-legal
dimensions of international life are utilised to illustrate the ways in which self-deter-
mination plays a role akin to a canary-in-the-mine for detecting certain emerging
themes in international relations. Secondly, the traditional pre-conditions to entitle-
ments of self-determination are outlined, in order to situate the ICJs recent opinion
on Kosovos UDI within the self-determination canon. Finally, the legal distinctions
between war and peace are discussed, in order to illustrate how friendly or peace-
ful exercises in self-determination can so easily degenerate into a no-holds-barred
armed conict which is the most dangerous scenario for all involved.
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 reect instead the availability
of alternatives. That is why the UN places so much importance on the organisa-
tions twin purposes of maintaining inter-state peace, and of preserving mutual
state non-interference in each others domestic aairs. 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.
arching Charter purpose to base future friendly relations on, respect for the prin-
ciples of equal rights and self-determination of peoples.23 This conditioning eect
makes clear that inter-state friendly relations above and beyond what is required
for inter-state peace are unlikely to arise merely from non-interference. Instead, the
persistent appearance of international tensions often reects variations in approach
to domestic state governance, as is now discussed in the context of the politics of
self-determination.
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 aected 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 reect three
inter-connecting extra-legal dimensions of international life the political, the
economic, and the social/cultural, which dimensions are more amenable to con-
sideration jointly and severally in the context of social justice; in contrast, histori-
Articles () and , UN Charter.

See, e.g. Elizabeth Chadwick, Its 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/ ( Octo-
ber ), 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 connes 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 conicts. Malcolm Nathan Shaw, Interna-
tional Law, Sixth Edition (Cambridge: Cambridge University Press, ), . See also
Ingrid Detter de Lupis, The Law of War (Cambridge: Cambridge University Press, ),
-.
cal contexts are more likely to throw up obstructions, particularly once the crucial
importance of legitimate rights entitlements is considered. This is so for many rea-
sons. In terms of the political dimension of self-determination, the maintenance of
international peace is intended above all to stabilise inter-state co-existence, one key
to which is the principle of non-interference. Specically, non-interference recog-
nises the hierarchical nature of internal state arrangements for determining such
local concerns as the distribution of rights entitlements, e.g., to equality before the
law, property ownership, the su rage, and so on. On the other hand, the principle of
non-interference is an obligation between states alone, which leaves unregulated by
the UN Charter or international law a more fundamental and long-standing prin-
ciple in human society: that of an inherent, natural right of the governed to revolt
against unjust government.29
Moreover, domestic power struggles and revolutionary politics have long been
the engines of radical change within states, but once a new power conguration be-
comes eective, a subject population will be expected to acquiesce and obey, wheth-
er or not their allegiance is also transferred.30 In that forceful seizures of control and
authority alone do not generate social harmony, a governing regime needs also to
remain mindful of the advantages of projecting both moral and persuasive authority
in order to be deemed just, particularly as any underlying basis for adverse and dis-
criminatory status dierentiations within multi-cultural states can as easily spark
resistance and/or violence as not.31 This point helps to introduce a second dimension
of international life: the economic. A prime catalyst for internal division in a society
is one or other form of economic inequality, as can be seen in states throughout the
world. In the post-1945 era alone, the search for economic redress has ranged from
an early attraction to Communism in the Third World, through to the global threat
of extremist violence today. Even more worrying are the marginalising eects of
poverty in generating inter-ethnic resentment and social alienation which provide a
recruitment ground for those who are more interested in stirring community strife
than not.32
It is also of note that the bi-polar rivalry of the Cold War did in fact ensure a
measure of stability in certain liberationist struggles, which helped to transform
E.g. Locke considered the right of revolution to be inherent in the social contract. John
Locke, Two Treatises of Government (rst published London: Awnsham Churchill,
), while for Emmerich de Vattels The Law of Nations (), just revolution inu-
enced just war theory.
Analogously, occupation law requires obedience, not allegiance. See Geneva Conven-
tion IV of , relative to the protection of civilian persons in time of war, and Hague
Convention IV of , respecting the laws and customs of war on land, Annexed Regu-
lations, Section III.
Martin Griths, Self-Determination, International Society and World Order, Mac-
quarie Law Journal (): , at text accompanying note .
Mark Dueld, Global Civil War: The Non-Insured, International Containment and
Post-Interventionary Society, Journal of Refugee Studies (): , at section enti-
tled, The Strategic Nature of Development.
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 inuence, such that the de-legitimisa-
tion of much non-state violence since 9/11, and the imposition of global obligations,
e.g., to end the nancing of terrorism, are again likely to upset traditional life, and
the nancial patterns on which that life depends for survival.34 Of particular con-
cern 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 As-
sembly, but such matters are not so easily resolved, as variations in approach have
shown over many years. For example, as noted by Dueld, the UN until the mid-
1990s 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 obliga-

tion to develop self-government is found in UN Charter, Chapter XI, Article (Non-
Self-Governing Territories), and Chapter XII, Article (International Trusteeship Sys-
tem), while in Article , independence may also be developed.
See, e.g. Thomas Viles, Hawala, Hysteria and Hegemony, Journal of Money Launder-
ing Control () (): ; Je rey Simser, Money Laundering and Asset Cloaking
Techniques, Journal of Money Laundering Control () (): ; Rowan Bosworth-
Davies, The Inuence 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 Conict on Household Welfare
and Policy Responses, Background Paper, World Economic and Social Survey .
Accessed September . www.un.org/esa/policy/wess/wess les/wsback-
groundpapers/justino_.pdf.
See, e.g. Comment and Analysis, Jason Burke, Jemaah Islamiyah shows Militancy with-
out Al-Qaida Leadership, The Saturday Guardian, June .
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 re-
ducing 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 nd 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
connes. In particular, once neighbouring or other states are called upon to accept
eeing 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 others domestic aairs as the price of peace, whilst pay-
ing 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 post-
1945 era, East and West tended to opt for arms-length partnership, and thereby to
avoid accusations of interference in each others zones of inuence, albeit often at the
expense of other international developments.38 In contrast, the more uid geo-politi-
cal 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 trouble-
spots. For example, the US has steadfastly supported an independent Kosovo,39
Dueld, note above, at section entitled The Advent of Post-Interventionary So-

ciety. See also Bulletin, UNDPA, A critical investment in preventing and resolving
conicts, (Winter -): - (a better investment than dealing with the costly
aftermath of war). Accessed September . www.un.org/depts/dpa/newsletters/
DPABulletinWinter-.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 Conict could set back Russias US relations for years, The Guardian,
August .
See, e.g. Robin Lustig, State rights vs. human rights? April . Accessed Sep-
tember . www.bbc.co.uk.
which is a stance not universally accepted throughout the West,40 while the Russian
Federation has long stood rm alongside its ally Serbia, putting in doubt any even-
tual state seat for Kosovo at the UN.41 For this reason, the Kosovo UDI confronted
the international community with a spectacular choice of action in 2008.
As a matter of choice, therefore, it appears that attention in the UN was focused
instead on the UDI itself, which helped to transform the referral of the General As-
semblys legal question to the ICJ into the time-buying distraction it really was.42
The decision to request legal advice from the ICJ as a preliminary matter makes
clear not only that many areas of international law remain uncertain, but further, it
illustrates the enduring usefulness of an analytic approach devised by Trainin in the
aftermath of World War 2, as the Cold War began. After rst remarking that ques-
tions on law can be answered only after the existence of that law is rst conrmed,
Trainin noted that attention should [then] be directed to a clarication of what
that law represents, what constitutes its economic base, and the interests and wishes
of what class or group within that class are reected in that law.43 In terms of the
question referred to the ICJ the accordance with international law of Kosovos UDI
this structured approach would require rst a consideration of what internation-
al law there is on declarations of independence in general, after which the specic
context of Kosovos interim international administration would necessitate inquiry.
Assuming that it had been possible to locate any international law applicable to
the facts and context of Kosovos UDI, the Court would then have needed to proceed
to a clarication of what that law represented, what constituted its economic base,
and what class or group interests were reected in it. Remarkably, this is, gener-
ally speaking, precisely what the ICJ proceeded to do when it rendered its Advisory
Opinion on 22 July 2010. The Court rst decided unanimously that it did in fact have
jurisdiction over a legal question.44 In terms of the Courts discretion as to whether it
should provide an opinion, however, the panel was divided, deciding by nine votes to
ve that it would be more preferable than not to comply with the request.45 As for the
The UN General Assembly vote for referral to the ICJ was states in favour, against
(Albania, Marshall Islands, Federated States of Micronesia, Nauru, Palau, and U.S.),
and abstentions. See, Backing Request by Serbia, GA Seeks ICJ Ruling, UN Doc.
GA/ ( October ).
Regions and territories: Kosovo. Last updated July . news.bbc.co.uk. UN mem-
bership requires recommendation by the Security Council, and a two-thirds majority of
the General Assembly. UN Charter Articles (), (), and ().
See, e.g. William Michael Reisman, The Cult of Custom in the Late Twentieth Cen-
tury, California Western International Law Journal (): .
I. P. Trainin, Questions of Guerrilla Warfare in the Law of War, American Journal of
International Law (): .
Contrast the contentious proceedings in Case Concerning Legality of Use of Force (Ser-
bia and Montenegro v. United Kingdom), Preliminary Objections () ICJ ( Decem-
ber): (no jurisdiction to entertain the application led April ).
Judges Buergenthal (US), Greenwood (UK), and Abraham (Fr.) voted in favour, while
Judge Skotnikov (Russian Federation), along with Vice-President Tomka (Slovakia), and
merits of the central legal issues, the Court then proceeded to adopt a bifurcated and
highly-systematic approach: rst, the compatibility of the UDI with general interna-
tional law was considered, after which the more positive legal relevance of Security
Council Resolution 1244 was examined. The Court held by a majority of ten votes to
four that it is of the opinion that the declaration of independence of Kosovo adopted
on 17 February 2008 did not violate international law.46
The ICJ found no general prohibition in positive international law on declarations
of independence, and remarked instead that there had been numerous occasions in
earlier centuries when declarations of independence were issued, while during the
second half of the twentieth century, the right of self-determination had prompted
the emergence of many new states.47 In noting that the scope of the principle of
territorial integrity is conned to the sphere of relations between States,48 the ma-
jority found no evidence of consistent state practice or opinio juris for or against
declarations of independence in general, and it noted that any condemnations by the
UN Security Council in the past of declarations of independence had not stemmed
from their unilateral character, but instead, from the violations of other interna-
tional norms which preceded them. The Court concluded that the declaration of
independence of 17 February 2008 did not violate general international law.49 As for
the second stage of its analysis, the ICJ drew a distinction between general interna-
tional law, and Security Council resolutions, noting that the latter are voted on, and
can bind all member states. The Court noted that Security Council Resolution 1244
and the Constitutional Framework for Kosovo were intended as temporary and sta-
bilising humanitarian measures to facilitate the reconstruction of basic public order
pending the development of meaningful self-government in Kosovo.
On the other hand, Resolution 1244 did not provide a timetable for termination of
the international administration. Moreover, the Court found no general or specic
prohibition in Resolution 1244 against a UDI, and it noted that the Secretary Gen-
erals Special Representative had remained silent after notication of what the Alba-
nian authorities had done a signicant point, as the Special Representative was un-
der an international duty to prevent ultra vires acts of the Provisional Institutions
of Self-Government designed to take eect within the legal order for the supervision
of which he was responsible.50 This conclusion then allowed the Court to nd that
the UDI had not been issued by the Provisional Institutions of Self-Government,
that the UDI did not take eect within the Provisional Institutional legal order, and
therefore that the UDI did not violate the Constitutional Framework. Accordingly,
the ICJ concluded, the authors of the UDI were not bound by the framework of pow-
Judges Koroma (Sierra Leone), Bennouna (Morocco), and Keith (New Zealand), dissent-
ed.
Vice-President Tomka, and Judges Koroma, Bennouna, and Skotnikov dissented, while
Judge Keith joined the majority.
Kosovo Opinion, note above, para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
ers and responsibilities established to govern the conduct of the Provisional Institu-
tions of Self-Government.51
In view of the long-standing links between Russia and Serbia over many centuries,
it was hardly surprising that Judge Skotnikov of the Russian Federation was the only
dissenting judge on the panel to originate from a permanent member state of the
Security Council,52 and his dissent provided a avour of the opposition. In his dis-
senting opinion, Judge Skotnikov wrote that he felt it was inappropriate for the Court
to render its legal opinion on political action adopted by the Security Council,53 as to
do so over-stepped the proper connes of the UN institutional framework. Whilst
considering Kosovos UDI to be unprecedented,54 he argued that the political pro-
cess in Kosovo had yet to run its course and receive endorsement by the Security
Council. He found there was sucient international law to prohibit the action by the
Kosovo Albanian leadership, in the form of Resolution 1244, as otherwise the Secu-
rity Council would have created a giant loophole.55 He concluded that the majoritys
interpretation of general international law was misleading and inammatory,56
particularly as, declarations of independence may become relevant in terms of gen-
eral international law only when considered together with an underlying claim for
statehood and independence.57
What is made crystal clear by the majority and dissenting opinions is that the
narrow legal approach adopted by the Court would likely be viewed as both safe,
and unsatisfactory. On the other hand, nding no prohibition in international law of
Kosovos bid for independence does not mean necessarily that a positive entitlement
exists, any more than it means that rights of revolution or lawful self-determining
parameters are discoverable for use by non-colonial, remedial, and/or territorial-
ly-dened peoples.58 There are of course many reasons why a positive entitlement
to self-determination beyond the colonial context has yet to be sourced concretely
in international law, particularly if Trainins structured approach is followed to its
logical conclusion, in the sense of clarifying the law, what that law represents, what
constitutes its economic base, and the interests and wishes of the relevant class or
group. In other words, while a principle of self-determination is conrmed in the
UN Charter,59 its economic basis, and the special interests reected in it are indeter-
Ibid. para. .
Judge Hanqin (China) did not participate.
Kosovo Opinion, note above; Judge Skotnikov, Dissenting Opinion, ibid. para. .
Ibid. para. .
Ibid. para. .
Ibid. para. .
Emphasis added. Ibid. para. , regarding which latter the Court had refused to com-
ment.
Contrast Jurgen Friedrich, UNMIK in Kosovo: Struggling with Uncertainty, Max
Planck Yearbook of United Nations Law (): -.
Articles () and , UN Charter, respectively. See also Charter, Articles and ; the
Atlantic Charter of August , reprinted in League of Nations Treaty Series :
, and in American Journal of International Law (Supplement No. ): .
minate inasmuch as it is possible to argue, as it was argued early in the UN era, that
the principle merely re-arms the sovereign equality of states.60
Nonetheless, it also remains the case that events cause the law to evolve, and once
the anti-colonial agenda took hold, the UN could only retard secessionist sentiments
by situating self-determination squarely within the colonial context, regarding
which General Assembly Resolution 1514 of 1960,61 at least, proved central in helping
to reduce wider system disruption. Be that as it may, the substantive content which
has slowly been poured into the principle of self-determination until today reects
far broader interests than those of states, and potentially veries the greater strength
of human over states rights, while the principle of self-determination remains useful
for indicating emerging themes in international relations at many levels. Trainins
general structure for questions about international law is thus helpful to illuminate
a further point: it is rarely the case that a people promotes, as an original motiva-
tion, the alteration of their states boundaries through complete territorial secession,
due to the many known diculties involved in such a drastic act.62 Instead, what is
sought more often than not is more a moral victory, in the sense of prioritising cer-
tain non-legal rationalities and values, e.g., those found in culture, tradition, and/or
rights claims to control historic lands.63
In the case of Kosovo, for example, the status equality the province had sought
alongside the other Yugoslav republics was denied even under the Yugoslav Con-
stitution of 1974. However, it was only once Serbia had revoked its minority rights
and autonomy in 1989, dissolved its assembly in 1990, and sent armed police units
in to suppress the resulting agitation that Kosovos shadow government arose and
tasked its Liberation Army to defend the provinces majority inhabitants in a violent
armed struggle with Serbia neither group could have wanted, particularly once war
Edward A. Laing, The Norm of Self-Determination, -, California Western In-

ternational Law Journal (): , n. , attributes this position to Kelsen (),
and Bentwick and Martin (). Contrast GA Res. (VII), UN Doc. A/RES/ (
December ), which a 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 Instru-
ments, International and Comparative Law Quarterly () (): , text accompa-
nying 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 (Ad-
visory 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 Interpreta-
tion, Yale Journal of International Law (): .
crimes began to proliferate on all sides, as well as gross violations of human rights.
This sequence of political events again makes it somewhat curious that the General
Assemblys central point of enquiry was the compatibility of the UDI with interna-
tional law. Such a simple question for such an egregious local situation thus begs the
question of what international human rights actually mean, as well as the question
whether rightful boundaries exist in the UN era between non-interference and gross
rights infringements. In turn, it may simply have been the case that certain states
hoped to entice the ICJ to act merely as a judicial referee between competing models
of state governance.
It is equally arguable that the measure of inuence wielded by those General As-
sembly states more inclined to support Kosovo was sucient to signal to those states
opposed to the UDI that, if not entirely out-leveraged in political terms, they were
suciently counter-balanced, to deter the latter from forceful intervention, pending
the Courts decision.64 In that the maintenance of international peace is, after all, a
primary function of the Security Council,65 it could equally have been the case that
stalemate in that organ made General Assemblys powers under Charter Articles 14
and 96(1) viable as a means to circumvent Article 12,66 and thereby produce a resolu-
tion of some description. It is thus fortunate that the ICJ did not waste its collective
time in searching for international consensus regarding self-determination, per se,
particularly as the UDI was neither accomplished, nor referred to the ICJ, under the
express self-determination banner. In turn, the Courts refusal to even discuss that
issue serves as an indirect reminder that, in certain circumstances, the more time-
less notion of a right to be free of oppression cannot be conned to articial legal
parameters, as is now discussed.
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 eective since the end of the Cold War era in
particular without undue loss of life. Revolutionary episodes to achieve self-deter-
mination 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/ ( Novem-
ber ).
E.g. the principle of self-determination was proclaimed in the French Revolution, and
was developed over the nineteenth and twentieth centuries. See, e.g. Vladimir Ilyich
Lenin, The Right of Nations to Self-Determination, reprinted in Lenins Collected
Works (Moscow: Progress Publishers, ) volume , -. Accessed September
. www.marxists.org/archive/lenin/works//self-det/index.htm. Philip Marshall
Brown, Self-Determination in Central Europe, American Journal of International Law
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 condi-
tions only so long as it remains exible and reects a wide consensus,70 the place of
self-determination in international law is now discussed in the contexts, rst, of the
identication of peoples, and secondly, of the international management of entitle-
ments to self-determination in practice.
i The Issue of Definition

To speak of a peoples desire to achieve rights of self-determination is rst to beg the
question as to what precisely is meant by the term people. Available choices include
an ethnic or minority approach to denition, as well as a wider civic or political
dimension in which there is demonstrated a common desire to live together, for ex-
ample.71 The existence of historic lands may serve to unite a people, as with the Pal-
estinians or Native American tribes,72 or in spite of common ties to land, a people
may seek to dierentiate 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 his-
tory, 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 Set-

tlement, International and Comparative Law Quarterly (): .
Article (), UN Charter. Cf. Laing, note above, , quoting Brownlie in : self-
determination [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 In-
ternational Law Commission () Volume II:, , characterising as an international
crime, a serious breach of an international obligation of essential importance for safe-
guarding 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 Nijho 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 Re-
port ().
See, e.g. The Kurds, Minority Rights Group Reports (); The Basques and Cata-
lans, Minority Rights Group Reports ().
See, e.g. Maya Chadda, Minority Rights and Conict Prevention: Case Studies of Con-
ict 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
a right to self-determination may equally be expressed by an entirely auto-dened

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 au-
tonomy in contexts far broader than colonialism, but when assessing the respective
merits of particular claims, qualifying pre-conditions for identifying peoples en-
titled to exercise their self-determination may prove useful. More fundamentally,
the relative balance of state convenience and self-interest must rst be addressed, in
order to gauge the likely eects of particular exercises on wider realities, particularly
as alternative self-determination platforms exist such as to enable a collective poli-
tics 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 Kosovos
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 secession-
ist 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 conict, as in Kosovo, is less straight-
forward. An incremental approach is then attributable largely to the structure of in-
ternational law. It is, of course, trite jurisprudence to note that any legal entitlement
must, in the rst 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 eective authority and control over individuals, and prior state consent
is required for nationals to have conferred on them any degree of international per-
sonality 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 Septem-
ber . www.falklandshistory.org/gettingitright.pdf.
As with early twentieth century Communism. See, e.g. Lenin, note above.
Detter de Lupis, note above, -; Shaw, note above, -. See also GA Res.
(XX), UN Doc. A/RES/ ( December ), GA Res. (XXV), UN Doc.
A/RES/ ( October ), and GA Res. (XXVIII), UN Doc. A/RES/ (
December ).
E.g. the European Convention on Human Rights , Protocol , and the Treaty of
Rome (consolidated version), Articles - and .
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
rst instance, the consent of their own state in order to benet from available do-
mestic procedures. Should such domestic arrangements not exist or fail, as is nor-
mally the case, the obstacles to greater autonomy can become increasingly dicult
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 aairs 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 seces-
sionist tendencies in micro-units of disaected 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 conict.
Whatever procedure consent, outside support, and/or the use of force proves
persuasive, UNGA Resolution 2625 (XXV) of 1970 lists the following preferred out-
comes 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 Conicts: Recent Developments,

European Journal of International Law (): ; Alexandra V. Orlova, Russias
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 -.
a) the establishment of a sovereign and independent state,

b) the free association or integration with an independent state, or
c) the emergence into any other political status freely determined by a people.
Much progress remains to be achieved even in the narrow connes 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 con-
sensually 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 re-
ected 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 ar-
rangements to hierarchically-imposed state identiers 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 rst modern support for self-determination was communicated in the 1941 At-
lantic Charter of 14 August 1941, which constituted the Allies vision of a fairer post-
war world. The inclusion of pro-self-determination sentiments in the Atlantic Char-
ter naturally provided fruitful rhetoric to rally colonial troops to the Allied cause
during World War 2,85 but a concern to end colonialism also reected a pragmatic
purpose an anti-colonial agenda could be utilised to forge future free trade rela-
tionships 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 in-
terests well, in that it operates to conne exercises in self-determination to former
colonial boundaries or similar, as the only indisputable situations in which self-de-
termination can occur lawfully.87 Fortunately, this principle has not succeeded in
GA Res. (XV), UN Doc. A/RES/ ( December ) still applies to non-

self-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 Septem-
ber . 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-exist-
ing, territorially-dened 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 Dis-
solution of Yugoslavia, January and July , Opinion Nos. and , reprinted in
International Legal Materials (): - and -, respectively. See also
conning 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
sucient 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 hu-
man rights, as the latter are individual, and thus made dependent on such domestic
state arrangements as exist within individual states. The codied substance of hu-
man 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 self-
determination: 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 sup-
port, which constitutes a further acknowledgement that the drive to end colonialism
represents but one acceptable format.94 However, ultimate proof that a peoples
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 aected 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 Com-
bating International Terrorism .
sue was provided in the context of non-intervention, when in 1977 international hu-
manitarian laws of armed conict were adapted to apply in full to a new and classic
trilogy of liberation struggles those against colonialism, foreign occupation and/or
racist regimes.95 This extension constituted a practical recognition of the scale and
intensity of liberationist armed struggles, which helped those struggles to trump
strong counter-arguments that to recognise them would only aord unwarranted
recognition to rebels and terrorists.96
The adaptation of humanitarian laws to the realities of modern armed conicts
had a further negative consequence, in that the predictability of future liberationist
outbreaks became less certain. In other words, once the international focus shifted
pragmatically from prevention to managing a new generation of liberation causes,
the competing frameworks of abstract theory and ideology which had already made
self-determination less safe for governments permitted post- or non-colonial peo-
ples increasingly to be the visible face of armed conicts for self-determination. This
shift in focus made it doubly imperative for states to negotiate on terms of mutuality
with their peoples, and preferably in a relationship of trust, condence, and mutual
respect,97 but the case of Kosovo points in contrast to the enduring importance of
building international support, and underlines perhaps the most fundamental point
of all: that law, in certain circumstances, can be as unacceptable to states as it is
to criminal individuals. Moreover, resort to laws alone cannot ever make self-de-
termination safe for governments, particularly as compliance obligations at many
levels are weakened by a patchwork of state self-regulation.98
This implies, in turn, that modern human rights regimes may have helped to
strengthen related principles of autonomy in relation to individuals and groups,
but that post-1945 rights entitlements exert countervailing pressures on individual
states. Once collective responses evaporate against threats to the territorial integrity
and political independence of certain member states, e.g., those which do not con-
duct themselves in compliance with the spirit and letter of the Charter and General
Assembly Resolution 2625, a further proposition matures: that a people holds rights
of self-defence against gross state oppression once that oppression rises to the level
Additional Protocol , Article ().

See, e.g. Hans-Peter Gasser, Agora: the U.S. Decision Not to Ratify Protocol , Ameri-
can Journal of International Law (): ; Judith Gardam, Protocol to the Ge-
neva 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, -.
of a constructive armed attack.99 For example, Friedrich, among others, argues that
Resolution 2625 provides strong support for the transformation of internal rights en-
titlements into external rights in such circumstances, and with specic reference to
Kosovo, he posits that this transformation process occurred once Serbia attempted
to ethnically-cleanse Kosovo of its majority Albanian population in 1998 1999,100
i.e. prior to international involvement by NATO, UNMIK, and others.
Accordingly, just as the principle of self-determination can never be made en-
tirely safe for governments, no putative law can ever provide the nal word to
condition or restrict the inherent right of a people to revolt against oppression and
unjust government. On the contrary, the indeterminate content of self-determina-
tion simply invites new challenges to arise against the existing order.101 Once the
geo-political opportunities of a post-9/11 anti-terrorist era bent on micro-managing
international nance (ostensibly to block the ow of funding to terrorists) are con-
sidered, what becomes increasingly clear is the constant need to generate new forms
of governance, and the resources to support them, which are often garnered most
easily in fragile societies. The two decades of a more uid, post-Cold War world
have already ensured a ready access to funds and weaponry by many new national
and international actors. What today is new is that emerging from within certain
insurrectionist groups is a willingness to diversify their warfare models to provide
forms of local welfare, such that the resulting competition for hearts and minds is
irrevocably altering, once again, the self-determination game, as is now discussed.
3 Peaceful and Other Exercises in Self-Determination

Underpinning all discussion of peaceful exercises of self-determination there is rst
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. Specically,
rules governing war ow from international law and custom, the content of which
is reinforced by the recently-formed International Criminal Court, whilst peace-
time rules may (or may not) be conditioned by respect aorded 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 briey outlined.
Friedrich, note above, (secession as a form of self-defence or ultimate de-

fence). See also Yuval Shany, Symposium: Self-Defence: The Analogys Limit: Defend-
ing 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 detat in Equatorial Guinea in , to obtain control over pref-
erential oil rights and other resources.
a Peace as the Absence of War?

Preliminarily, the word peace denotes the absence of violence, conict or other con-
frontational 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 aggres-
sive armed force between sovereign states.103 By 2004, a High-Level Panel was able
to report to the UN Secretary-General that, in relation to decisions to use military
force, we believe that the Charter of the United Nations, properly understood and
applied, is equal to the task.104 In turn, war still occurs, so Common Article 2 of the
Geneva Conventions of 1949 species in the pertinent part that the four 1949 Geneva
Conventions shall apply to all cases of declared war or of any other armed conict
which may arise between two or more of the High Contracting Parties, and to all
cases of partial or total occupation of state territory whether or not resisted. The
phrase, properly understood and applied, as employed by the High-Level Panel in
2004, thus reects both the fact of war, and the high degree of exibility retained
by states in the UN era when the time arrives to utilise military force, as when de-
fending themselves against an armed attack in accordance with the UN Charters
article 51.
Article 51 does not conne the right of self-defence to responses against state
armed attacks alone,105 even though prior to 9/11, there was certainly a doctrinal ten-
dency to do so.106 Specically, this tendency in legal doctrine has for some time helped
to facilitate the social construction of many post-1945 non-international armed
War in the Gulf, Greenpeace Campaign Report (London: Greenpeace, ). See also
Gregor Noll, The Miracle of Generative Violence? Rene Girard and the Use of Force in
International Law, Leiden Journal of International Law () (): .
Article (), UN Charter. See also GA Res. (XXIX), UN Doc. A/RES/ ( De-
cember ), Article .
Report of the Secretary Generals High-Level Panel on Th reats, Challenges and Change,
A More Secure World: Our Shared Responsibility, UN Doc. A// ( December
), .
The Chatham House Principles of International Law on the Use of Force in Self-De-
fence, International and Comparative Law Quarterly (): -.
See, e.g. Michael Bothe, Terrorism and the Legality of Pre-Emptive Force, European
Journal of International Law (): -.
conicts,107 which has made their regulation, politically and legally contentious,108
despite the fact that an armed conict is a core concept in international law. More-
over, the characterisation of an armed conict should never be a matter that is
conclusively and exclusively determined by the state concerned.109 Accordingly, the
post-9/11 euphemistic terminology used by certain states to characterise a war on
terror is not only misleading, but has also served to muddy the central distinction
between war and peace, particularly as regards internal conicts, which are the
most problematic to identify.110
Secondly, the automatic extension in 1977 of international humanitarian legal
provisions to some liberationist struggles may have simultaneously tightened the
scope for exibility in contexts of military necessity and proportionality,111 but there
is as yet nothing which extends to peoples an analogous right of self-defence or to
source a right to request assistance against state aggression: as noted above, aggres-
sion, strictly speaking, can only be perpetrated by states against states.112 Similarly,
state rights of self-defence may be used to justify the use of force against non-state
entities, but the obverse position is not generally accepted.113 Not only has such one-
sidedness in legal entitlement led many states to combine their military and law en-
forcement activities for use against terrorists, insurgents, violent extremists, etc.,114
but the melding of specialised (wartime) terminology within that of general peace-
time has also provided a foundation for disregarding the legal implications of rules
of international humanitarian law, as is now briey outlined.
International Law Association, Initial Report on the Meaning of Armed Conict in

International Law, (): . Accessed September . www.ila-hq.org/en/commit-
tees/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, Interpre-
tive 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 Responsi-
bility to Protect Doctrine and Humanitarian Intervention: Too Many Ambiguities for a
Working Doctrine, Journal of Conict & Security Law () (): , -.
See Status of the Geneva Protocols, UN Doc. A/RES// ( December ).
A point reinforced by the new denition 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, -.
b War and Armed Conflicts

The conditions for the application of international humanitarian laws of armed con-
ict have long been both clear and objective, and the universality of humanitarian
obligations is reected most recently in the jurisdiction of the International Crimi-
nal Court.115 Rules for combatants are divided between those for use in international
armed conicts, and those for non-international armed conicts.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 conict, 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 diculties in internal conicts regarding,
inter alia, combatant status, as it is exceedingly rare for a threatened state to recog-
nise 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 humanitar-
ian 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 conict,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 conicts. Common Article to the Conventions, and Addi-
tional Protocol of , apply to non-international armed conicts.
See also Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International
Humanitarian Law (Cambridge: Cambridge University Press, ), which work iden-
ties the customary law rules that apply in both international and non-international
armed conicts.
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 aect the legal status of the parties to the con ict. Neither the
occupation of a territory nor the application of the Conventions and this Protocol shall
aect the legal status of the territory in question.
But see Antonopoulos, note above, .
The Powers in conict are strictly bound only to opposing Powers which accept and ap-
ply the relevant conventions. Common Article to the Geneva Conventions, and
Additional Protocol , Article ().
armed conict is left undened in Geneva law,122 but the ICRC has made it clear that
the law of war applies from the rst acts of hostilities or un-resisted occupation.123
Such automatic applicability is exceedingly controversial, as to require a state threat-
ened with internal enemies to implement any level of international rules at the rst
acts of hostilities, etc., is to expect that state to acknowledge for international con-
sumption that it is faced with a situation beyond police control. Nonetheless, should
isolated incidents of domestic unrest increase in intensity and duration, Common
Article 3 to the four 1949 Conventions should be applied instantly, and as a mini-
mum. Common Article 3 provides that in a non-international armed conict, each
party must guarantee certain basic human rights on a non-discriminatory basis.
However, the principle of non-interference applies to civil war, and human rights
are left to states to manage, so the absence in Common Article 3 of any provision for
external scrutiny by neutral Protecting Powers means that the articles central hu-
manitarian purpose can be easily outed. With such deciencies in mind, Common
Articles 2 and 3 were supplemented in 1977 in Geneva Additional Protocols 1 and 2
additional to the 1949 Geneva Conventions.
i Protocol 1
In Protocol 1 Article 1(4), international armed conicts are extended to include
armed conicts in which peoples are ghting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of self-determina-
tion, as enshrined in the UN Charter and in GA Resolution 2625. These categories
are illuminated in the Commentary to the 1977 Protocols in pertinent part as fol-
lows:
The expression colonial domination certainly covers the most frequently occurring case
in recent years The expression alien occupation covers cases of partial or total occu-
pation of a territory which has not yet been fully formed as a state. Finally, the expression
racist regimes covers cases of regimes founded on racist criteria. The rst two situations
imply the existence of distinct peoples. The third implies, if not the existence of two com-
pletely distinct peoples, at least a rift within a people which ensures hegemony of one
section in accordance with racist ideas.124
Obviously, and as noted earlier, the inclusion of certain liberationist wars within
the rules of humanitarian law applicable to international armed conicts caused
concern in certain states, as the scope of GA Resolution 2625 regarding self-determi-
Cf. International Committee of the Red Cross, Opinion Paper, How is the term Armed
Conict dened in international law? ( March ). Accessed September .
www.icrc.org/web/eng/siteeng.nsf/htmlall/armed-con ict-article-/ le/Opin-
ion-paper-armed-conict.pdf.
Frederic de Mulinen, Handbook on the Law of War for Armed Forces (Geneva: Interna-
tional Committee of the Red Cross, ), .
The Commentary, note above, .
nation categories is rather broader than colonial domination, alien occupation and
racist regimes. Resolution 2625 species 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 pur-
sue their economic, social and cultural development (emphasis added).125
The Resolution devotes its special condemnation to colonialism, and states are ex-
horted to bring a speedy end to it, having regard to the freely expressed will of
the peoples concerned. Not to do so constitutes a violation of the principle, as well
as a denial of fundamental human rights, and is contrary to the Charter. The ap-
plicability of humanitarian laws to liberation conicts is rather more specic, and
the ICRCs position on Article 1(4) of the Protocol is stated in The Commentary as
follows:
[I]t cannot necessarily be deduced from the text that the scope of Article 1 is limited to
cases of decolonisation and occupation still in existence Theoretically at least, the no-
tion of Party to the conict, within the meaning of the Protocol, is fairly wide, involving
not only resistance movements representing a pre-existing subject of international law
and governments in exile, but also those ghting for conicts of self-determination or
national liberation.126
What no doubt facilitated the promotion in status of liberation conicts to full-

scale international armed conicts 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 adminis-
tering it. This acknowledgement permits the view that a non-self-governing terri-
tory by denition has a separate status which is akin, if not entirely equivalent, to
a subject of international law, such that an armed conict 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 conict needs a
degree of international status, e.g. that aorded due to its battleeld behaviour. As a
precaution against overly-broad interpretations, the ICRC adds: the mere existence
of a government or resistance movement is not sucient 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).
tional character of the conict, nor does it establish that character,127 in which case
recourse might be had to Additional Protocol 2.
ii Protocol 2
Protocol 2 additional to the four 1949 Geneva Conventions is relevant to non-inter-
national armed conicts, and Article 1(1) makes the application of the two Protocols
mutually exclusive. The price of tighter state self-regulation, beyond that in Com-
mon Article 3, is a narrow scope of application. For example, Article 1(1) excludes the
applicability of Protocol 2 should dissident armed forces or other organised armed
groups not be under responsible command, nor in control of part of state territory
so as to enable them to carry out sustained and concerted military operations and
to implement this Protocol. Further, the armed group must be engaged in conict
against the state, and not against other violent non-state actors within the territory,
the latter situation remaining one to which Common Article 3 might continue to
apply. These requirements make for a very strict set of pre-conditions, failing which
only Common Article 3 may (or may not) be applicable to liberationist forces which,
inter alia, operate clandestinely over a trans-boundary environment, are not consid-
ered a de facto authority within a state, are not engaged in conict against govern-
ment forces, and/or are not able to implement this Protocol.128
More limiting still, Article 1(2) sets upper and lower limits for a non-international
armed conict. Conict at or above the upper limit of Protocol 2 brings Common
Article 2 of the four 1949 Conventions into play. The lower limit excludes situations
of internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not being armed conicts,129 which
assists a state to downgrade its international obligations when facing certain forms
of violent civil disorder, to ignore minimal humanitarian rules, to disregard human
rights norms, and to re-impose order as it, and it alone, sees t. The strict criteria in
Article 1(1) are thus reinforced by Article 1(2), yet it is the broad scope left in Article
1(2) for state discretion in auto-interpretation that is of concern, as the characterisa-
tion that a government attributes to internal disorder permits state control over the
propaganda machine. Even the ICRC explanation of Article 1(2) is less than clear: in
regard to open struggle, the Protocol might apply; regarding lesser acts of violence,
Emphasis added. The Commentary, note above, , citing Draft Additional Protocols
to the Geneva Conventions, Commentaries (Geneva: International Committee of the
Red Cross, ), .
The Commentary, note above, -. See, e.g. Konstantin Obradovic, Interna-
tional humanitarian law and the Kosovo crisis, International Review of the Red Cross
(): , who notes that, events as from March caused the situation in
Kosovo to escalate into an internal armed conict, at least in my opinion. This could in
fact be a matter of dispute our media kept talking about terrorism.
For a discussion of this additional test, see Anthony Cullen, The Denition of Non-
International Armed Conict in the Rome Statute: An Analysis of the Threshold of Ap-
plication Contained in Article ()(f), Journal of Conict and Security Law () ():
.
e.g., those ranging from the spontaneous generation of acts of revolt to a struggle
between more or less organised groups and the authorities in power, it may not.130
As for mere internal tensions, the Commentary lists such situations as large-
scale arrests, and large numbers of political prisoners. In relation to the latter, the
ICRC appears to indulge in its own euphemism, as follows:
It should be noted that there is no legal denition of so-called political prisoners. They
may be referred to in very dierent ways depending on national legislation, for example,
persons detained for security reasons, persons detained by order of the executive, etc.131
National legislation can of course prompt social violence, just as national legislation
is often the principal obstacle to achieving rights of self-determination. In turn, the
high threshold of Protocol 2 may have been a price worth paying to ensure state
agreement to institute better rules for certain civil wars,132 but the ICRC expanded
its approach, in light of modern armed conicts more recently as follows:
Non-international armed conicts are protracted armed confrontations occurring be-

tween governmental armed forces and the forces of one or more armed groups, or be-
tween 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 conict must show a mini-
mum 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 ghting against Serbian police forces.134 However, by the start of
the NATO bombing campaign in March 1999,135 there no longer seemed much doubt
The Commentary, note above, , quoting the International Committee of the Red
Cross submission to the Conference of Government Experts in (citation omitted).
Ibid. , note .
Implementation is distinct from ratication. The Socialist Federal Republic of Yugosla-
via ratied the Conventions in , and the two Additional Geneva Proto-
cols in . Slovenia, Croatia, and Bosnia-Herzegovina purported to succeed to all the
Geneva instruments in . See International Review of the Red Cross (May-June
): and , and Table III. States Party to the Protocols International Review
of the Red Cross (January-February ): , -, respectively. See also Special
Issue: The Kosovo Crisis and International Humanitarian Law, International Review of
the Red Cross (March ).
Emphasis in the original. International Committee of the Red Cross, Opinion Paper,
note above.
Sonja Boelaert-Suominen, The ICTY and the Kosovo Conict, International Review of
the Red Cross (): . See also Letters dated March and March , note
above.
See, e.g. Fifth Annual Report of the ICTY, UN Doc. A//, S// ( August
), , para. , noting the March conrmation that, the territorial and tem-
poral jurisdiction of the [Yugoslav] Tribunal covered any serious violations of inter-
that an armed conict between Serb military forces and the KLA was being waged.136
When called upon to adjudicate the matter, the Trial Chamber at the International
Criminal Tribunal for the former Territory of Yugoslavia found sucient evidence to
determine, in Case No. IT-02-54-T, that the KLA [had been] an organised military
force, with an ocial joint command structure, headquarters, designated zones of
operation, and the ability to procure, transport, and distribute arms,137 and that the
KLA acted under the direction of an organised civil authority.138 Somewhat more
controversially, the Trial Chamber also concluded that the KLA was, at times in
1998 and 1999, in sucient control of certain territory in Kosovo to conduct sus-
tained and concerted military actions.139
These conclusions imply although the Trial Panel did not so state explicitly
that the obligations of Protocol 2, rather than Common Article 3, attached during
the relevant time period to the internal armed conict between Serb forces and the
KLA. Had the tribunal not so held, however, matters would have been left either to
the minimal provisions of Common Article 3, or failing that, to what has increas-
ingly become the mixed situation of a combination of police and military action,
such that few if any protections are available. In other words, a situation of just war
is potentially the most dangerous for all concerned, as is now discussed.
b Just war
Due to the mass atrocities perpetrated in recent conicts, e.g., in the former terri-
tory of Yugoslavia, Rwanda, and elsewhere, widespread eorts have been made to
strengthen the notion of international crimes, such that individual criminal respon-
sibility could attach to those perpetrating particularly heinous acts as an accepted
universal norm. The 1998 Statute of Rome for an International Criminal Court, in
particular, constituted a huge step forward in providing a more comprehensive and
inclusive approach to certain crimes deemed to be of concern as a matter of course
to the international community, whether or not those crimes were perpetrated dur-
ing times of war or of peace. For example, two categories of criminal act over which
the new Court has jurisdiction genocide and crimes against humanity require
no nexus to an armed conict. In turn, the mere fact that gross and/or mass atroci-
ties occur outside of an armed conict has helped to reinforce an agenda designed
to sidestep the many diculties of categorisation, in preference for a system which
national humanitarian law taking place in Kosovo. See also Public Statement by the
International Committee of the Red Cross on the situation in Kosovo, International
Review of the Red Cross (): (civilians the main targets, and not collateral
damage).
See Case No. IT---T, Prosecutor v Milosevic, Decision on Motion for Judgement of
Acquittal Under Rule bis., ( June ), (denial of partial defence that no armed
conict existed before March ).
Ibid. para. .
Ibid. para. .
Ibid. para. .
requires the prosecution of perpetrators of international crimes regardless of indi-

vidual status.
Whether or not an armed conict 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 conict 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 Associations Use of Force Committee to conduct a study into the
exact meaning of the term armed conict in international law.140 In so doing, the
Committee has helped to expose the gaps in coverage which exist in general prin-
ciples 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 prelimi-
nary ndings in August 2008.141 These ndings reected, as a minimum, that there
is in existence an armed conict 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 af-
forded into the on-going debates which surround the denomination of the dierent
forms of violence utilised in dierent contexts. Instead, the two preliminary criteria
reect a simple, pragmatic approach to a factual situation. The Use of Force Com-
mittee submitted its nal report to the ILA Annual Conference, held between 15 - 20
August 2010 in The Hague.142 The nal report expands greatly on the detail of recent
armed and domestic conicts, in order better to distinguish between their den-
ing characteristics. The nal report does not deviate from the original two criteria
highlighted above, but after consideration of literally hundreds of post-1945 violent
situations, the Committee was able to conclude that the international community
embraces a common understanding of armed conict.143 In turn, evidence in sup-
See Mary Ellen OConnell, Dening Armed Conict, Journal of Conict & Security
Law (): .
International Law Association, Initial Report, note above.
International Law Association Use of Force Committee, Final Report (Draft) on the
Meaning of Armed Conict in International Law, submitted at the International Law
Association Annual Conference, The Hague, - August , -. Accessed
September . www.ila-hq.org.
Ibid. .
port of this common understanding was provided negatively, by means of the fol-
lowing consequences to third states of an armed conict occurring elsewhere:
In addition [to laws of armed conict], states that provide asylum to persons eeing the
violence of armed conict will have the duty to do so; treaty obligations may be implicat-
ed; the law of neutrality may be triggered; arms control agreements are aected, and UN
forces engaged in armed con ict will have rights and duties not applicable in operations
outside of armed conict. These are just some of the areas of international law that are
aected by the outbreak of armed conict.144
The Committee could nd no widely accepted denition of an armed conict in any

treaty, so it concentrated instead on the fact that [a]ll armed conict has certain
minimal, dening characteristics that distinguish it from situations of non-armed
conict or peace.145 Most crucially, the Committee made clear that, in the event all
these characteristics were not present, states may not, consistently with interna-
tional law, simply declare that a situation is or is not armed conict 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 ac-
knowledged.
With specic reference to the politically-charged war on terror, the nal report
of the Use of Force Committee notes that it cannot be assumed as in the past
that a state engaged in armed conict 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 con-
ict. To claim such rights outside of an armed conict risks violating fundamental human
rights that prevail in non-armed conict.148
It is of huge signicance that the Use of Force Committee points essentially to the
same criteria as those utilised in the ICRCs eorts to promote humanitarian re-
straint, and the Committees conclusions have serious implications for the overall
distribution of power in the UN era. This is so for many reasons, not least of which
is that, while states place themselves under international obligations to act lawfully
in relation to each other, it has been thought imperative to the good working of the
UN system that each state retains its sovereign exibilities to maintain good order
within its own domestic borders. The problem which has arisen in recent years in
particular is that certain states have assumed the right if not the duty to impose
particular modalities of good order on other states, and when doing so, not to make
Ibid.
Ibid. -.
Ibid.
Ibid. .
Ibid. .
much if any reference to international law. In contrast, the nal Committee Report
disagrees with this recent tendency, particularly when the purpose of extra-terri-
torial enforcement activity is solely to buttress the enforcing states own national
security. This then reinforces the point made by Professor Brownlie, that UN organs
should disregard a strict approach to the UN Charters Article 2(7) when interna-
tional principles are in issue.149
On the other hand, it may seem odd today that the characterisation of so recur-
ring a human event as war should still cause uncertainty in government, military,
and legal circles, but it is equally easy, relatively speaking, to understand why this
should be the case. International society is not ready perhaps for current attempts
to centralise more control over individual states, and certain domestic situations
may in fact require a forceful cooling down by government coercion. However, it is
equally important to recall that government over-reaction can become the problem
rather than the solution, and that further breakdowns in lawful limits to armed force
endanger all states, particularly when the growth in support is factored-in of theo-
ries of corrective or remedial self-determination. This point brings matters around
to the legal vacuum present in many non-international armed conicts, particularly
as the details of humanitarian law obligations depend on such behavioural norms as
responsible organisation, compliance with military discipline, proportionate means
and methods of warfare, and so on, the formal obligations of which are mitigated
somewhat by sliding scales of special battleeld notions of necessity and propor-
tionality.150
Most crucially, the main drawback of humanitarian rules is that once implement-
ed, there is no further potential to derogate from them. This means that a conict
in which those rules are not recognised as relevant is covered only by universal and/
or regional human rights instruments,151 which, if accepted by the relevant state,
permit derogation, e.g. during emergency situations threatening the life of the na-
tion, for all but the strongest rights such as the right to life. For situations moving in
and out of armed conict over a period of time, or which are even less clear-cut, the
legal situation becomes highly opaque. Accordingly, recent arguments in support
of converging minimal humanitarian and human rights norms should be treated
with high suspicion, if not outright alarm, as the commingling of the benets of the
two discrete areas of law is more conducive to omitting their restraints, and hence,
to disregarding law altogether. As even minimal humanitarian provisions remain
Laing, note above. See also Shaw, note above, : international law treats civil
wars as purely internal matters, with the possible exception of self-determination con-
icts.
See Wol Heintshel von Heinegg, The Current State of International Prize Law, in In-
ternational Economic Law and Armed Conict, ed. Harry H.G. Post (London: Martinus
Nijho Publishers, ), , -.
See, e.g. Preamble to Additional Protocol : international instruments relating to hu-
man rights oer a basic protection to the human person.
stronger than those found in derogable human rights laws,152 it is thus to the great
credit of Kosovo that the overwhelming majority of its elected representatives chose
to embrace an as-yet unmolested separate future under the full glare of international
attention, stewardship, and administration.
On the other hand, terms such as peace or war alone communicate as little
in terms of law as does self-determination, yet the high-level determination at
The Hague War Crimes Tribunal, that humanitarian laws were clearly applicable
to Kosovos armed struggle against a racist [Serbian] regime,153 continues to prove
persuasive. When the time arrived for the Kosovo Albanian authorities to issue their
UDI, and to embark on a territorial secession which by no means has resulted from
a friendly and/or consensual transition to self-governing independence, Serbia was
blocked by international action (and the recent ICJ Advisory Opinion) from further
unlawful uses of force, gross violations of human rights, and war crimes in its former
province. What can be concluded is that the resulting international stalemate may
prove to protect both Serbia and Kosovo from each other far more than either could
have done alone. Moreover, Serbia has lost and re-acquired its own independence
more than once in its long history,154 and for it to insist at this point in time on the
perpetuation of a nal rump of its former twentieth century territorial integrity is to
conate not only a desired map with the territory, but also, history with the future.
4 Conclusion
Geo-political concerns during the post-1945 era have mandated certain constraints
on the exercise by peoples of their self-determination, and demands for self-determi-
nation which do not result from peaceful, friendly, or tolerable consensus continue
to pose deep questions for the international community. The early connement
of the principle to decolonisation certainly proved useful, but its time has nearly
passed. Shows of temporal pragmatism and state solidarity are today challenged in
new directions, such as in the growing importance of non-discriminatory human
rights guarantees to self-determination, which underscores a point made by Shaw:
international law has sometimes to modify its reactions to the consequences of
For a broad discussion of this issue, see Antonopoulos, note above. See also William
Abresch, A Human Rights Law of Internal Armed Conict: The European Court of
Human Rights in Chechnya, European Journal of International Law (): .
See quotation accompanying note above. Cf. Report of the World Conference to
Combat Racism and Racial Discrimination (New York: United Nations, ), Pro-
gramme of Action, Pt. A (Measures at the national level) Article (ii).
Useful historical overviews are provided in Barbara Jelavich, History of the Balkans:
Eighteenth and Nineteenth Centuries (Cambridge: Cambridge University Press, )
Volume I; The Other Balkan Wars: A Carnegie Endowment Inquiry in Retrospect
(Washington DC: Carnegie Endowment for International Peace, , rst published
).
successful violations of its rules to take into account the exigencies of reality.155 As
noted in the Commentary:
The principle [of self-determination], which was proclaimed by the French Revolution,
and was subsequently often denied, has from the outset constantly come up against the
legal order; this did not prevent it from being applied with increasing frequency and from
growing in strength [as] a guiding principle in politics and a rule of exception in inter-
national law.156
More international actors, positive developmental goals, and the de-legitimisation of

much political violence today have nonetheless not prevented the principle of self-
determination 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 aairs. The Charter purpose of maintaining international peace and
security remains of great importance of course, yet the visibility of much interna-
tional 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 sta-
bility, particularly as it has never been assumed that peace is equivalent to harmoni-
ous inter- or intra-state relations.
Today, at least half of all wars being fought involve claims by non- or post-colo-
nial 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 sucient, 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 dierent 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).
Griths, 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).
done, perhaps it is only via such a peace dividend that wider political, economic, and
social/cultural progress can be incorporated into international law.159
As a nal point, a majority in Kosovo has voted for independence, which was an
accomplishment perhaps not made under the express banner of self-determination.
However, questions such as whether or not the UDI was in fact legal in interna-
tional law, whether or not Kosovo had any pre-existing entitlement to self-deter-
mination, and/or whether or not the Kosovo UDI has set a dangerous precedent
for other struggling groups, are issues which can easily become moot in time if
aorded enough time. At the end of the day, the Kosovars themselves hold the ulti-
mate trump card: they possess collectively the inherent human rights of resistance
to, and revolt against, forms of governance they do not want. As noted by John Stu-
art Mill,
A man who has nothing which he cares about more than he does about his personal safety
is a miserable creature who has no chance of being free 160
In turn, interpretive legal gaps too often in practice indicate only that theoretical
bridges are necessitated in order to conceal certain international realities, yet inter-
national law would mean little if the non-prohibition of Kosovos UDI in interna-
tional law found by the ICJ does not inject a bit more concrete reality into the cur-
rent situation. Whilst there is little doubt that the former Serb province of Kosovo
was never a pre-existing state administrative unit or similar,161 or that Serbia will
never consent to Kosovos complete territorial separation, the General Assembly is
only to be commended for locating a means of peaceful delay with its referral to
the ICJ for the latters legal advices a delay which aorded additional time for fur-
ther diplomatic overtures regarding the appropriateness of international transitional
arrangements for Kosovo, and which have helped to disincline certain states from
chauvinistic forms of outside interference. In conclusion, whether right or wrong,
Kosovos transit to a future status has at least so far been accomplished peace-
fully.
E.g. a peaceful Kosovo, and Bosnia-Herzegovina, could be relevant to membership ne-

gotiations 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.
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 ies in the face of the post-war
consensus on the illegality of secession1, we need to return to the 1998-99 Kosovo
crisis and address the dynamics that informed foreign intervention at that time. We
will argue that this intervention was motivated as much by a self-determination im-
perative whereby foreign powers sought a detailed realignment of the Yugoslav
constitution as by humanitarian concerns.
Much of the literature on foreign intervention in the Federal Republic of Yugosla-
via (the FRY)2 at the time of the 1998-99 Kosovo3 crisis addressed both the nature of
B.B. Jia, Independence of Kosovo: A Unique Case of Secession? Chinese Journal of

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 Montene-
gro formed the Federal Republic of Yugoslavia which was considered by the EC Peace
Conference Arbitration Commission to be a new state. Conference on Yugoslavia Ar-
bitration Commission (hereinafter the Badinter Commission), Opinions on Questions
Arising from the Dissolution of Yugoslavia, () Opinion No. . The FRY was recog-
nised by member states of the European Community following the Dayton Agreement
of December . The other four republics became independent states: Bosnia-
Herzegovina, Croatia, Macedonia and Slovenia.
On the question of nomenclature and in particular toponymes, the Federal Con-
stitution of the SFRY referred to Kosovo. Kosovo, however, is generally known to Serbs
as Kosovo-Metohija. As with so many of the internecine conicts in the Balkans, place
names carry great political signicance. Metohija is a Greek word which indicates part
of a district which was Orthodox Church property. E. Kofos, The Two-Headed Alba-
nian 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
the intervention and its length in fairly narrow terms. In respect of the latter issue,
the intervention was generally taken to have begun with NATOs aerial bombard-
ment which commenced upon 24 March 1999 (with the bombardment, if not the in-
tervention, ending on 10 June 1999); while in terms of the nature of the intervention,
debate about the legality and/or the justiability of NATOs bombing campaign has
largely revolved around its construction as a purported instance of humanitarian
intervention, thereby conning the debate concerning both the nature and the legit-
imacy of western activity within the by now well-established discourse on humani-
tarian law. The sides of this debate aligned roughly as follows: on the one hand there
were those who have sought to justify the air assault by arguing that it was essential
to prevent a humanitarian catastrophe in terms of refugee movements resulting
from a campaign of ethnic cleansing orchestrated by the FRY security forces.4 On
the other hand there were two main (and over-lapping) arguments which consid-
ered the intervention to be unjustiable on humanitarian grounds. These suggested
either that humanitarian intervention without Security Council authorisation is il-
legal under international law;5 or that any legitimacy claimed for the intervention,
whether moral of legal, was undermined by the fact that the western powers were
motivated by strategic rather than humanitarian concerns.6
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 Legiti-
mation of Forcible Humanitarian Countermeasures in the World Community? Euro-
pean 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: Conict, International Re-
sponse, 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 Aairs Committee Report
House of Commons Foreign Aairs Committee Fourth Report, May , para.
. For other opinions which consider the bombing to have been unlawful but which
are otherwise sympathetic to NATOs 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 Aairs (). See also, Nico Schrijver, NATO in Kosovo: Humani-
tarian 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 humanitar-
ian 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, Hu-
manitarian 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? 251
This chapter will argue that the intervention should not be addressed in such a
temporally and substantively limited way, and that its legality in fact ought to be
addressed beyond the exclusive connes of the humanitarian intervention narra-
tive, an approach that will help us come to terms with the international response to
Kosovos Declaration of Independence on 17 February 2008. On a temporal level, it
seems that, given the intensity of the international involvement in FRYs aairs from
March 1998 onwards, any intervention, whether humanitarian or otherwise, should
properly be considered to have taken place over this year-long period, and not simply
when NATOs bombing began. Although the bombing campaign clearly represented
a dierent order of intervention, the period from March 1998 saw an intense process
of coercive diplomacy which included, from August 1998 onwards, threats that force
would be used.7 Secondly, in substantive terms, it would appear that the agenda of
the Western powers throughout this period was not exclusively, or even perhaps
primarily, driven by humanitarian concerns. That is not to say that there was not a
humanitarian problem certainly from the summer of 1998 onwards, over 200,000
Kosovars were displaced from their homes, and between January and March 1999
this problem intensied8 but it is equally clear that the diplomatic endeavours of
the various international organisations went beyond attempts either to bring about
an end to the military conict between the FRY and the Kosovo Liberation Army
(KLA), or to alleviate humanitarian problems. The international community in fact
sought to broker an overall political settlement, and to this end in both October
1998 and March 1999 (the latter occasion being the Rambouillet forum) the Western
powers attempted to impose a model of autonomy for Kosovo which was drafted by
them, and which, if accepted by Belgrade, would have amounted to nothing less than
an externally imposed re-working of the constitutions of Serbia and the FRY. Finally
it is also important to reconsider what is meant by the term intervention itself.
Certainly it may involve the use or threat of force, but it should also be broad enough
to include the use of coercive diplomacy, including but not exhausted by the use
of economic and nancial sanctions. It is important to recognise that intervention
can take dierent forms and that diplomacy of this kind when exercised by power-
ful states or international actors can impact upon state the reality of sovereignty.
Martin Loughlin discusses sovereignty as having both a legal and political dimen-
sion. These he denes, respectively, as competence representing legal authority,
and capacity representing political power.9 While coercive diplomacy may not af-
Going back further, in many ways the long intervention has its origins in the dis-
solution of the Yugoslav state in the early s. The Dayton Accord, the continuing
presence of the UN in Bosnia-Herzegovina, and the ongoing work of the International
Criminal Tribunal for the former Yugoslavia are all examples of sustained intervention
in the former-Yugoslav lands by the international community. Below we will discuss
how the fall-out of Yugoslavias collapse, in particular the Bosnian war, helped shape
the approach taken by international actors from -. It seems that NATOs bombing
campaign in Kosovo requires to be set within this broader context.
UNHCR gures cited by IIC Report, note above, .
Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, ), .
fect a states legal competence to control its territory, it can certainly impinge upon
its political capacity; and to ignore this political dimension is to fall into what Neil
Walker terms sociological navet.10 For example, powerful states can control trade
terms for errant states, and organisations like NATO and the European Union can
use membership of important economic and political bodies as ways of inuencing
state behaviour.
In this chapter it is intended to explore how Kosovan autonomy became such an
important driving-force behind Western intervention, to the extent that this issue,
in addition to humanitarian problems in Kosovo, was instrumental in the NATO de-
cision-making process which resulted in the bombing campaign of March 1999 and
a factor that helps explain how Kosovo has moved to the verge of statehood today
with the complicity of the Western powers.11 The pressure exerted upon the FRY to
reach an autonomy settlement with Kosovo begs the question: why should the inter-
nal constitutional arrangements of the FRY have been a source of such international
concern? In a sense the intervention in Kosovo, with its strong autonomy dimension,
recalls Hurst Hannums argument set out in 1990 that the, right of autonomy, was
emerging as, a new principle of international law in the interstices of contempo-
rary denitions of sovereignty, self-determination, and the human rights of indi-
viduals and groups.12 This chapter will address the Wests intervention from this
perspective since, at the very least, both humanitarian and autonomy concerns com-
bined in driving the international agenda.13 It has even been suggested that NATOs
intervention represents a nexus between the principle of self-determination and the
developing law of humanitarian intervention in terms of their nature and content.14
Whether or not we can go as far as this is not clear, but it does seem that the au-
tonomy dimension in the Wests approach to Kosovo ought to be treated seriously.
Neil Walker, Sovereignty and Dierentiated Integration in the European Union, Euro-
pean Law Journal (): -.
On February the EU presidency announced that member states were free to
decide individually whether to recognise Kosovos independence. Most have done so.
Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation
of Conicting Rights (Philadelphia, PA: University of Pennsylvania Press, ), . Ref-
erences to autonomy in this chapter are very case specic and allude to particular
models of self-government which were advanced specically for Kosovo; as such the
word is used as, a relative term which describes the extent or degree of independence of
a particular entity, rather than dening a particular level of independence which can be
designated as reaching the status of autonomy. Hurst Hannum and Richard B. Lillich,
The Concept of Autonomy in International Law, American Journal of International
Law (): -.
It perhaps also reects the fact that in recent years there has developed within Europe,
particularly in light of the collapse of Yugoslavia, Czechoslovakia and the USSR, a grow-
ing emphasis upon autonomy for national minorities as a political and legal priority, a
point returned to in the conclusion below.
Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective: Self-Determi-
nation, Territorial Integrity and the NATO Intervention, Final Report (NATO Oce of
Information and Press, ), .
In Part 2, the story of Western involvement from March 1998 to the end of that
year will be re-traced in order to illustrate just how pervasive was the determination
of the international community, not only to end the military conict and ameliorate
humanitarian suering, but to secure a political resolution to the perceived problem
of Kosovos constitutional status. In Part 3 it will be suggested that recent Yugo-
slav history, and in particular the lingering international role in the former-Yugoslav
lands by the late 1990s, helps explain why, in the case of Kosovo, the internation-
al community reacted in the way that it did, when similar pressure has not been
brought to bear on other states throughout the world which deny autonomy to their
internal minorities. Among the factors which seem to have motivated the Western
powers were: rst, the recent memory of the UNs failure to stop the internecine
wars which characterised the SFRYs dissolution (particularly the war in Bosnia),
and the way in which the European Communitys approach to state recognition in
the wake of that dissolution had left Kosovo as perhaps the most prominent loser in
this recognition process; and secondly, a concern on the part of the international
community with the way in which Kosovan autonomy, previously entrenched in the
SFRY constitution of 1974, had been emasculated from 1989 onwards by both Serbia
and the FRY in a process which served to deny Kosovo Albanians both the minority
rights and the right of internal self-determination which the European Community
arbitration process in the early 1990s had sought to guarantee.15
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 commu-
nity (and latterly NATO in particular) presented justications for intervening in the
internal aairs of the FRY based upon the need for conict control and for the al-
leviation of humanitarian problems. This construction of a humanitarian interven-
tion 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 FRYs 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 Wests
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 mili-
tants a clamp-down which resulted in further conict 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 Kosovos status as an autonomous province of Serbia and the work of the
arbitration process will be discussed.
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 eorts 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 FRYs aairs.
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 coher-
ent strategy which involved a variety of dierent 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 es-
tablishment was the worsening security position, it was clear from the time of the
Contact Groups 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 Kosovos 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 commit-
ment was hedged with the qualication that any such autonomy arrangement should
not aect the FRYs 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
Kosovos emasculated constitutional status, and that the achievement of any long-
An initial meeting of the Foreign Ministers of Contact Group states was held in Lon-
don. Oce of the High Representative, Statement of the London Contact Group Meet-
ing, March . The Contact Group had in fact been established in April as the
Contact Group for Bosnia and Herzegovina. See The Kosovo Conict and International
Law: An Analytical Documentation -, Cambridge International Document Se-
ries, ed. Heike Kreiger (Cambridge: Cambridge University Press, ), volume II, .
An example of this was the eort undertaken by the Contact Group to secure Security
Council backing for its initiatives. As early as March the Contact Group requested
the Security Council to impose an arms embargo on the FRY which was eventually
secured through SC Res. , UN Doc. S/RES/ ( March ). Another example
is the way in which the Contact Group referred frequently to SC Res. , UN Doc. S/
RES/ ( March ) and SC Res. , UN Doc. S/RES/ ( September )
in both framing its eorts to resolve the crisis and in claiming legitimacy for its role as
mediator.
For example the Statement of March proposed a new diplomatic mission by former
Spanish Prime Minister Felipe Gonzalez.
term solution would require that this issue be addressed. The remainder of this sec-
tion of the chapter will discuss how the issue of autonomy for Kosovo remained high
on the international agenda through to the autumn of 1998 in terms of both the at-
tempts to secure a diplomatic settlement in the spring and summer of 1998, and the
agreements secured in October 1998 (which in the end were not fully implemented).
a Kosovo: The Self-Determination Dimension

The initial strategy pursued by the Contact Group in the Spring of 1998 was to pres-
surise 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 be-
yond). Although the Contact Group was keen that any such negotiations should in-
volve international mediation (in particular that of Felipe Gonzalez who was nomi-
nated as the Personal Representative of the OSCE Chairman-in-Oce),19 this plan
met with rm 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 Groups
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 Kosovos weak
constitutional status vis--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 Belgrades 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, Dees Sanctions, Reuters, May .
In this early period the FRYs 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 Miloevi and US envoy
Richard Holbrooke, US Sends Peace Broker Holbrooke to Yugoslavia, Reuters, May
; US Envoy Holbrooke Starts Kosovo Mission, Reuters, May . For a discus-
sion 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 eect on an already inamed
situation. (Statement of the OSCE Troika, April ). UN Doc. S//, ( April
), Annex II, para. .
erendum, the dispute between FRY and the western powers crystallised to a large
extent around the issue of self-determination. On the one hand, the Contact Group,
in arguing for greater internal autonomy for Kosovo, was suggesting implicitly if
not explicitly that the people of Kosovo had a right to internal self-determination,
and that this right was not being properly accommodated by the state; while, on the
other hand, Belgrade considered that Kosovars did not constitute a separate people
and that the relevant self-determining units were either the people of the FRY or
the people of Serbia (both of which entities incorporated Kosovo). Working on the
assumption that Serbians were the relevant people for the purposes of internal self-
determination, the Yugoslav authorities could point to the April referendum as a
clear expression of public faith in the Serbian authorities to reject external interfer-
ence. Furthermore, throughout the crisis, the federal government could rely upon
another important feature of the right to self-determination under international law:
namely, the way in which references to it in international instruments are so often
juxtaposed with concomitant commitments to the territorial integrity of the state
a fact which at the very least precluded any prospect of independence for Kosovo
without the FRYs consent (such a commitment to the FRYs territorial integrity was
included in the Contact Groups March statement, and was thereafter repeated fre-
quently by international organisations).
This linkage between the principles of territorial integrity and self-determination
highlights the legal and practical diculties which any international body or group
of states face in attempting to pressurise a state into agreeing to autonomy for an
internal minority when the state resists such pressure and is able to demonstrate
strong popular opposition to any external involvement in such a process of constitu-
tional accommodation. At a deeper level, it also demonstrates the tension or paradox
within the principle of self-determination which can, through its commitment to
territorial integrity, to some extent seemingly belie the commitment to self-govern-
ment for all peoples which it claims to assert.23 In this context, the republic-wide
referendum held by Serbia echoed that earlier referendum held in Bosnia in 1992
referred to above on the recommendation of the Badinter Commission.24 Just as the
principle of self-determination was used to defend the result of this referendum, and
hence Bosnias territorial integrity, in the face of secessionism by Bosnian Serbs, so
too could Serbia rely on the referendum of April 1998 as legitimising its opposition
Martti Koskenniemi addresses the issue from another perspective that of laws cred-
ibility. If self-determination is open to reinterpretation so as to accord a right to state-
hood in response to new generations of group rights claims this may expose internation-
al laws inherent vulnerability since it could lead to the meaning of self-determination as
a legal principle being too readily open to processes of re-conguration which in the end
could undermine the very concept of statehood itself. Martti Koskenniemi, Theory,
Implications for the Practitioner, in Theory and International Law: an Introduction,
eds. P. Allott et. al. (London: British Institute of International and Comparative Law,
), .
Arbitration Commission of the Peace Conference on Yugoslavia, International Legal
Materials (): , Opinion No. , para. .
to secessionist Kosovars.25 Throughout the crisis, the UN Security Council was also
aware of this diculty, and in its subsequent endorsements of greater autonomy for
Kosovo it too conrmed the commitment of all Member States to the sovereignty
and territorial integrity of the Federal Republic of Yugoslavia.26 It is no surprise,
therefore, that the hard and fast linkage between the principle of self-determination
and that of territorial integrity comes under criticism. For example, Hurst Hannum
is one commentator who, in the Kosovo context, has recently suggested that in an in-
ternational quest for greater autonomy for an oppressed group, the oppressor states
right to territorial integrity should not be treated as an absolute consideration: Why
should we assume that the frontiers that existed at the dawn of a new millennium
should be maintained forever. Arent other values preserving cultural identity,
increasing meaningful and eective participation equally important?27 In many
ways the Kosovo crisis even going back to the 1990s already raised questions for the
discipline of international law in highlighting so starkly the paradoxes and inconsis-
tencies which attend the right of self-determination, questions that would only come
to a head as the nal status of the territory became an imperative concern.28
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 dierent given that
Bosnia and Herzegovina prior to its recognition had promised autonomy for Bosnian
Serbs which the FRY and Serbia were denying to Kosovo. Nonetheless the Bosnian ex-
perience does call into question the decision of the states of the European Community
to recognise only former Yugoslav republics as states through the application of the
principle of uti possidetis juris to republican borders (this will be discussed further
below). See also J. Laponce, National Self-Determination and Referendums: the Case
for Territorial Revisionism, Nationalism and Ethnic Politics (): -. The use of
referendums both in Serbia and in Bosnia highlight how these devices can exacerbate
problematic situations by polarising rather than reconciling divergent positions within
a territory. Margaret Moore, Normative Justications for Liberal Nationalism: Justice,
Democracy and National Identity, Nations and Nationalism (): -. Michael
Lusztig and Colin Knox, Good things and small packages: lessons from Canada for the
Northern Irish Constitutional Settlement, Nations and Nationalism (): -.
It supported the Contact Groups attempts to secure a peaceful resolution of the conict
which would include an enhanced status for Kosovo, involving a substantially greater
degree of autonomy and meaningful self-administration. SC Res. , UN Doc. S/
RES/ ( March ), para. ; SC Res. , UN Doc. S/RES/ ( September
), preamble; and SC Res. , UN Doc. S/RES/ ( October ), preamble.
Hurst Hannum, Territorial Autonomy: Permanent Solution or Step Toward Secession?
(ZEF Bonn: Centre for Development Research, ), .
P. Hilpold, The Kosovo Case and International Law: Looking for Applicable Theories,
Chinese Journal of International Law (): -.
This is evident in the use of sanctions which began with the Contact Group call-
ing for an arms embargo in March 1998, and which also led to the imposition of
economic sanctions as the Contact Group attempted to encourage an agreement
on Kosovos status. This approach was set out by the Contact Group at its meeting
of 9 March as follows: Unless the FRY takes steps to resolve the serious political
and human rights issues in Kosovo, there is no prospect of any improvement in its
international standing. On the other hand, concrete progress to resolve the serious
political and human rights issues in Kosovo will improve the international position
of the FRY and prospects for normalisation of its international relationships and
full rehabilitation in international institutions.29 In this regard President Miloevi
was given an ultimatum, to take rapid and eective steps to stop the violence and
engage in a commitment to nd a political solution to the issue of Kosovo through
dialogue.30
Since the Dayton Agreement concluded on 14 December 1995, and largely in con-
sequence of the unsatisfactory situation in Kosovo, an outer wall of United States-
led sanctions against the FRY had remained in place which prevented the FRYs ad-
mission to the World Bank and the IMF; and now pressure mounted to extend these
restrictions. Initially in April 1998, as tension grew, the Contact Group imposed a
freeze on FRY assets held abroad.31 Tying these sanctions to its wider agenda, the
Group conrmed that, on the one hand, the freeze would be lifted immediately if
Belgrade took the necessary steps, as outlined by the Group, to engage in political
dialogue with the Kosovo Albanian leadership; but that, on the other hand, a fail-
ure to engage in dialogue would result in further sanctions aimed at halting new
investment in the FRY.32 In other words, sanctions were being used to pressurise
Belgrade into an autonomy agreement. Throughout the spring of 1998 it was repeat-
edly evident that sanctions were being employed as both threat and inducement in
an attempt to broker a political deal. For example, since negotiations had not begun
by 9 May 1998, on that date the Contact Group indicated that it would impose the
investment ban on the FRY;33 however, two weeks later, on 23 May, with talks having
Contact Group Statement, March , para. .

Treating Miloevi 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
specied [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 NATOs air-strikes in
March .
West Imposes Sanctions on Yugoslavia, Reuters, May . Once again Russia dis-
sented from the decision.
begun between Miloevi and Rugova on 15 May, the Group eased sanctions and
decided not to put this ban into eect.34
The Contact Groups strategy on the use of sanctions was endorsed by other ac-
tors. For example, the UN Security Council followed the Contact Group lead, not
only by imposing an arms embargo, but also by endorsing its attempt to produce a
political settlement.35 Hence both Security Council Resolutions 1160 and 1199 had
three main aims: the two short-term goals of conict control and alleviation of the
growing humanitarian crisis; and thirdly, the more ambitious objective of securing a
political resolution to the dispute. In this context, the Security Council called upon
the authorities in Belgrade and the leadership of the Kosovar Albanian community,
urgently to enter without preconditions into a meaningful dialogue on political
status issues.36 Furthermore, it set out its intention to review the situation on the
basis of reports by the Secretary-General who would assess whether the Govern-
ment of the FRY was co-operating with the UNs demand that it begin a substantive
dialogue,37 which should include the participation of an outside representative or
representatives (notably of course also a Contact Group demand).38 The Security
Councils call for talks on autonomy again raises the issue of self-determination in
relation to Kosovo. In a report written for NATO, Dajena Kumbaro argued that the
call in SC Res. 1160 for a meaningful dialogue on political status issues, and its, sup-
port for an enhanced status for Kosovo which would include a substantially greater
degree of autonomy and meaningful self-administration,39 is recognition of Kosovos
The Group undertook to consider later in May whether to continue with the freeze on
the FRY funds held abroad as well as with the other sanctions still in place Serbian
Sanctions put on Hold, Reuters, May . The Contact Group was now faced with a
situation in which it had relaxed sanctions against the FRY only to see the Kosovo Alba-
nians suspend the talks scheduled for June in the face of the advancement by Serbian/
FRY forces on civilian population centres, a scenario which prompted Albanias Foreign
Minister Pascal Milo to comment: Unfortunately the Contact Group of countries has
given Milosevic much more carrot than stick. Big Powers plan Kosovo Meeting Next
Week, Reuters, June . It was widely suspected that Belgrade was in fact using the
talks as a smoke-screen to continue its military campaign in Kosovo whilst at the same
time beneting from an easing of sanctions.
It would also in due course endorse the October Agreements which were eventually
brokered by the Group in the autumn of (see below).
SC Res. , UN Doc. S/RES/ ( March ), para. .
Ibid. para. (a).
Ibid. para. . Reiterating that the FRY could either improve or weaken its international
standing by the action it took, the Resolution armed that: concrete progress to re-
solve the serious political and human rights issues in Kosovo will improve the interna-
tional position of the Federal Republic of Yugoslavia and prospects for normalisation of
its international relationships and full participation in international institutions, (para
), but also armed that, failure to make constructive progress towards the peaceful
resolution of the situation in Kosovo will lead to the consideration of additional meas-
ures. para. .
SC Res , UN Doc. S/RES/ ( March ), para. .
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 constitu-
tionally part of Serbia. Kosovo Albanians objected to this arrangement since they
wanted to negotiate directly with the federal FRY government. Another problem
remained in Belgrades opposition to the involvement of an independent third party
in negotiations; instead, Serbia oered 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-Oce of the OSCE Bron-
islav Geremek visited the FRY where he met authorities in Belgrade, Pristina, and
Podgorica (the capital of Montenegro). During his talks with President Miloevi
in Belgrade, Miloevi conrmed that the FRY would not be ready to accept OSCE
demands concerning international mediation before taking back its seat in the Or-
ganisation. He indicated that he would be willing to negotiate with Mr. Gonzalez,
on the condition that Gonzalezs mandate would be limited to the question of re-
admittance 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, there-
fore, 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 articial 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 humani-
tarian 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-Generals reports pursuant to SC Res. ,
S/RES/ ( March ), which described mounting tension on the ground and
continued ghting, echoing the ndings 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 signicant ow of refugees to Albania from May onwards. Furthermore, the Secretary
General identied 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
to draw up a new peace plan which was to involve a much more detailed level of in-
ternational pressure, including an elaborate plan for a constitutional solution to the
perceived problem of Kosovos status. For example, a Contact Group statement of 12
June 1998 set out further demands,45 and by 9 July the group had prepared an outline
peace agreement based on a plan of autonomy for Kosovo. This plan would have
entailed substantial self-government for Kosovo but continued to rule out indepen-
dence as an option.46 Throughout the summer this plan was the basis of increasingly
urgent and proactive international demands for a detailed constitutional solution;
but, once again, as had occurred in May, moves towards political dialogue were soon
undone by events on the ground, and by the end of July ghting had intensied as a
result of a massive Serbian/FRY oensive against the KLA, which led ultimately to
the collapse of this initiative.47
This oensive reminded the Security Council of the need to force the political
pace, and, in yet another display of the international co-operation which prevailed at
this time, the Security Council endorsed the Contact Groups June initiative by way
of Res. 1199 (1998).48 One particular catalyst for this further Security Council reso-
lution was the Secretary-Generals report to the Security Council of 4 September,
which contained a dramatic depiction of the declining humanitarian and security
situation resulting from the ongoing summer oensive against the KLA. The pros-
pect of new talks had further diminished from the already unpromising position
concern that in light of this failure, mounting violence in Kosovo might overwhelm
political eorts to prevent further escalation of the crisis. UN Doc. S// ( June
). See also: UN Doc. S// ( July ), para. ; and Information on the Situa-
tion in Kosovo and on Measures taken by the Organisation for Security and Co-operation
in Europe, submitted pursuant to paragraphs and of SC Resolution (), UN
Doc. S// ( August ), paras. -.
A British Foreign Oce spokesman announced the demand by Contact Group minis-
ters of an immediate cessation of all action by the security forces against civilians, un-
impeded access for international monitors and humanitarian organisations to Kosovo,
the right of refugees to return to their homes and rapid progress towards a dialogue
with the Kosovo Albanian leadership. Contact Group Statement, June . Russia
Opposes NATO Force against Serbia, Reuters, June .
Serbian Parties Hail Kosovo Plan, US Warns of War, Reuters, July .
This led to a growing pessimism among the Contact Group powers. Despair in West
as Prospects for Peace Diminish, Reuters, July ; Kosovo Faces All-out War as
Serb Tanks Shell Rebels, Daily Telegraph (London), July . On July the OSCE
reported that it had failed to persuade the FRY government to allow a permanent OSCE
diplomatic mission to return to Kosovo or to accept the mediation of Felipe Gonzalez
without a restoration of Yugoslavias full membership of the OSCE. Milosevic Refuses
Permanent OSCE Mission, Reuters, July . By August Reuters reported that
the West was growing increasingly frustrated and that again NATO was drawing up
contingency plans. West warns Milosevic on Kosovo, Reuters, August . On
August the Albanian parliament appealed to the international community to intervene
militarily in Kosovo, Albania urges Western Military Action in Kosovo, Reuters,
August .
SC Res. , UN Doc. S/RES/ ( September ), para. .
which had prevailed in the spring of 1998,49 and, therefore, in a more urgent tone,
Security Council Resolution 1199 called upon the authorities in the FRY and the
Kosovo Albanian leadership to enter immediately into a meaningful dialogue.50 This
resolution echoed several of the Contact Groups demands originally contained in
the Groups statement of 12 June 1998, for example: that these talks should take place
without preconditions and with international involvement; that they should involve
rapid progress to a clear timetable; and that they should lead to an end to the crisis
and to a, negotiated political solution to the issue of Kosovo.51
The worsening situation towards late summer52 eventually led to the hardening
of the Wests attitude when it came to commitments undertaken by the FRY in Oc-
tober which were secured against the back-drop of a NATO ultimatum on the use
of force. This followed the issue on 24 September of an Activation Warning by the
North Atlantic Council, which made the prospect of military operations ever more
real. The NATO ultimatum was taken seriously by Belgrade and led to a cease-re
and then to a political settlement brokered by Richard Holbrooke.53 The October
process had two main elements: rst, was a two-part verication agreement whereby
the FRY undertook to reduce its forces in Kosovo to pre-conict levels, and assented
to mechanisms by which this process could be veried;54 and secondly, (and very
signicantly given the Contact Groups agenda over the previous eight months), was
the main agreement which envisaged a political settlement to the crisis, signed on
The Secretary-Generals report in August followed the collapse of the Contact Groups
July initiative to broker a settlement, and included a report from the OSCE which high-
lighted that the Republic of Serbia continued to maintain the precondition that dia-
logue should be conducted within the framework of both Serbia and the FRY and that
the territorial integrity of the FRY should rst be guaranteed. UN Doc. S// (
August ), Annex I, para. . The Secretary Generals reports were very inuential:
for example, UN Doc. S// ( June ); UN Doc. S// ( July ); UN
Doc. S// ( August ); UN Doc. S// ( September ). His reports
continued up until the air-strikes of March : UN Doc. S// ( October );
UN Doc. S// ( November ); UN Doc. S// ( December );
UN Doc. S// ( January ); UN Doc. S// ( March ).
This resolution adopted much stronger language than Security Council Resolution
() in demanding that all parties cease hostilities. SC Res. , UN Doc. S/RES/
( September ), para. . As such it a rmed that the deterioration of the situation in
Kosovo constituted a threat to peace and security in the region. SC Res. , Preamble.
SC Res. , para. . The Security Councils language was, by October , to be-
come even more imperative in Resolution () which stressed the urgent need
for such dialogue. SC Res. , S/RES/ ( October ), para. .
Notably, however, although there were a large number of displaced persons, in terms of
the ghting itself Tim Judah comments: [t]here were few casualties on either side. Tim
Judah, Kosovo: War and Revenge (New Haven and London: Yale University Press, ),
.
By this agreement the FRY agreed to comply with the demands of the Security Council.
These two agreements were signed on and October.
October 12.55 This latter agreement emerged from the paper prepared by the Contact
Group which proposed autonomy for Kosovo within the FRY. It was then promoted
by the US Ambassador to Macedonia, Christopher Hill in a process of shuttle di-
plomacy over the summer of 1998. The substance of the agreement was a guarantee
of autonomy for Kosovo for an interim three year period at the end of which the
agreement would be re-assessed.56 The Contact Group was keen to entrench this
settlement quickly and, therefore, the agreement included a public commitment by
the FRY to complete negotiations on a framework for a political settlement by 2 No-
vember ; by 9 November the detailed rules and procedure for an election were to be
agreed, and the election itself was to be held within nine months under OSCE super-
vision. Finally, the integrated nature of the international approach was further rein-
forced by the Security Council in Res. 1203 (1998) which endorsed these Agreements.
3 The Dissolution of Yugoslavia and Western Intervention

Having reviewed the intensity of Western eorts to secure an autonomy agreement
for Kosovo from spring to autumn 1998, it is interesting to reect upon why the in-
ternational 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 Yu-
goslavia 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 Yugoslavias collapse (in particular the war in Bos-
nia), and of the ECs 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 Kosovos misfor-
tune 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 Yugoslavias collapse from 1991-2 and the mistakes of hesitancy and
confusion which characterised, in particular, the international reaction to the ensu-
ing 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 Aairs (): -, 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 Conict?
Characterisation and Consequences, British Yearbook of International Law ():
-; Dominic McGoldrick, Yugoslavia The Response of the International Com-
munity and of International Law, Current Legal Problems - (); S. Sto-
approach to the political situation in Kosovo from March 1998, were partly driven by
a sense of guilt stemming from the UNs failure to do more to prevent the Bosnian
conict. For example, British Foreign Secretary Robin Cook announced early in the
crisis that there should be no more Bosnias;58 while, as the situation deteriorated
in April 1998, US Secretary of State Madeleine Albright stated dramatically that,
we are on the road back to hell.59 On one level, the memory of Bosnia as a killing
eld is a fairly obvious motivating factor in the international approach to Kosovo
given that it represented a recent event in the same region, and one clearly marked
by international inaction. It seems, however, that the fall-out from Bosnia was sig-
nicant in another sense: namely in the legal context of Yugoslavias collapse and the
international approach to the emergence of new states; a process in which Kosovo
felt itself to be the real loser.
It is worth recalling the lead taken by the EC as Yugoslavia collapsed, and to
revisit briey the legal issues involved in particular, those surrounding the recog-
nition of new states.60 The Arbitration Commission established by the EC to adjudi-
cate on the legal implications of the Yugoslavia crisis of the early 1990s, with Robert
Badinter the President of the French Conseil Constitutionnel as chairman, declared
in its rst opinion that the SFRY was dissolving, thereby circumventing the di-
cult issue of secession.61 In light of the SFRYs collapse, the Arbitration Commission
janovic, The Destruction of Yugoslavia, Fordham Journal of International Law

(-): -; Stephen Tierney, In a State of Flux: Self-Determination and the Col-
lapse of Yugoslavia, International Journal on Minority and Group Rights (): -
; Marc Weller, The International Response to the Dissolution of the Socialist Fed-
eral 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 SFRYs dissolution include: Colin War-
brick, Recognition of States, International and Comparative Law Quarterly ():
-; Colin Warbrick, Recognition of States Part , International and Compara-
tive Law Quarterly (): -; Weller, note above; Matthew Craven, The
European Community Arbitration Commission on Yugoslavia, British Yearbook of In-
ternational 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., Inter-
national 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 (): -.
turned its attention to the recognition of new states in a process which would see
Croatia, Slovenia, Bosnia-Herzegovina and Macedonia eventually emerge as inde-
pendent entities.62 What is interesting is that the EC, in the Guidelines it proposed
for recognition of new states, decided to include additional requirements which went
beyond the minimal standard for recognition of new states laid down in the Mon-
tevideo Convention of 1933. Article 1 of this Convention contains what is essentially
a value-neutral test of an aspiring new states viability; in short, this establishes a
duty on states not to recognise a new state unless it satises fundamental, but largely
pragmatic, requirements of statehood. In particular, the new state must be able to
demonstrate that it exercises governmental control of a clearly dened piece of terri-
tory with a clearly dened population; and hence that it has the capacity to enter into
relations with other states.63 The EC super-imposed upon the classical Montevideo
Convention test several additional criteria. For example, it required the republics
of Yugoslavia which were applying for recognition by EC member states to demon-
strate that they had a democratic mandate for independent statehood, and that they
had put in place constitutional guarantees for human rights, particularly minority
rights. Leaving to one side the question of whether recognition can be constitutive
of statehood or is in fact merely declaratory,64 as a matter of political reality, recogni-
tion by the EC had important consequences for the four republics mentioned, and
certainly hastened the process of UN membership for at least three of them. In a
sense it is also possible to view the approach taken by the EC to the recognition cri-
teria and its application as a form of intervention, since super-imposing criteria such
as democratic and human rights considerations upon the standard recognition prin-
ciples was a subtle way of directing the constitutional futures of the newly emerging
states.65 Another example of the way in which recognition was applied politically
came in respect of Macedonia where Greek concerns about the new state prevented
its full recognition for several years.
The Arbitration Commissions work remained fresh in the minds of Kosovar na-
tionalists who considered it to be unfair. Although the EC had marked new depar-
tures in recognition policy by declaring the protection of minority rights by new
states to be essential, it had also drawn a line in terms of the type of entity which
could seek statehood. Independence was only available to republics of the FRY (as
dened by the SFRY constitution of 1974) who met the recognition criteria. Apply-
ing the principle of uti possidetis juris which preserves existing boundaries, the EC
The nal status of the other two SFRY republics (Serbia and Montenegro) was not set-
tled as far as the EC was concerned until the Dayton Agreement in .
Montevideo Convention on the Rights and Duties of States of , League of Nations
Treaty Series , .
In other words the debate as to whether recognition by other states can actually create a
state or whether the question of a states existence is simply one of fact with recognition
serving only to evidence that fact.
Zoran Oklopcic, Populus Interruptus: Self-Determination, the Independence of Kos-
ovo, and the Vocabulary of Peoplehood, Leiden Journal of International Law ():
.
determined that for the purposes of its recognition policy, Yugoslavias internal re-
publican borders would be decisive.66 Kosovo, as an Autonomous Province of the
Republic of Serbia was not entitled to apply for statehood. On 15 June 1992 the EC
stated: frontiers can only be changed by peaceful means and [the EC states] remind
the inhabitants of Kosovo that their legitimate quest for autonomy should be dealt
with in the framework of the EC Peace Conference.67 As a consequence, Kosovo had
a right only of internal self-determination and its formal application for recognition,
delivered in a letter by Dr. Rugova, to the chairman of the peace conference con-
vened by the EC at the Hague, was not considered.68
Kosovos grievances were increased by the inconsistency of the Western approach
to Yugoslavias collapse. The Hague conference which met in September 1991, at the
very start of the crisis, had initially sought ways to preserve the state of Yugoslavia
intact, before in the end being forced to recognise that this was not possible.69 The
way in which the West had changed its approach in 1991 continued to fuel Kosovan
nationalist ambitions for recognition even though the West consistently ruled out
this possibility; as the Kosovars reasoned, if the Western powers had changed their
minds once they could do so again.70 This notion that Kosovos status remained to
be nalised was further encouraged in Kosovan minds by the Dayton Agreement,
where once again Western intervention in the former-Yugoslav lands continued. The
creation of two Bosnian entities was widely seen as a stop-gap measure which would
only prevent temporarily the incorporation of Serb and Croat regions of Bosnia and
Herzegovina within Serbia and Croatia respectively. Again, therefore, the fall-out
from Yugoslavias collapse seemed to be unnished, and Kosovars continued to hold
out hope for independence in part through the further intervention of the western
powers.71 Furthermore, the substance of the Dayton Agreement was in itself also a
source of grievance to Kosovar nationalists who felt that in reality it violated the uti
possidetis principle set out in the ECs recognition policy, particularly if the Bosnian
Serb entity would one day be permitted to join with the FRY. Whether or not this
was a realistic complaint, the wide autonomy accredited to the Republika Srpska sug-

EC Press Statement, Luxembourg, June .
Letter to Lord Carrington, dated December (for the text of this letter see Krieg-
er, 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 Bal-
kan War, ed. T. Veremis and E. Kofos (ELIAMEP: Athens, ), and .
gested that Bosnian Serb aggression had gained for them advantages which Kosovo,
despite its discrete constitutional identity under the old SFRY constitution, had not
received. As Tim Judah puts it: While they [Kosovo] had had an entity, which had
played its part as a federal unit in the old Yugoslavia, they were now without rights
while, in their view, the campaign of genocide led by Bosnian Serb leaders was being
rewarded.72 The nal insult was that the issue of Kosovos status was excluded from
the Dayton process; instead, the EC states recognised the FRY as a state despite the
process of constitutional centralisation carried out by Belgrade since the late 1980s,
and despite the fact that Kosovo languished within both the FRY and Serbia stripped
of constitutional autonomy (see below) a situation which seemed to contradict the
ECs commitment, enshrined in the 1991 Guidelines on recognition, to ensuring that
minority rights are guaranteed before recognition is accorded to new states. It is per-
haps not surprising that the IIC Report judged that Dayton, by giving, the FRY a free
hand in Kosovo, demoralised and weakened the non-violent movement in Kosovo,
and, led directly to a decisive surge of support among Kosovars for the path of vio-
lent resistance as the only realistic path to independence.73 It seems, therefore, that
the long intervention by the Western powers since the initial period of the SFRYs
dissolution had heightened expectations within Kosovo that international powers
would take a hand in securing constitutional protections for Kosovo; it was in this
context that Dayton proved to be such a disappointment for Kosovars, serving to
raise the stakes in their quest for autonomy.
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 com-
pounded by the deteriorating condition of Kosovos constitutional status, and in
particular, by the way in which the autonomy it enjoyed under the 1974 SFRY Con-
stitution 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 hav-
ing 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 Constitu-
tion 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 re-
public was dened by the nation which formed the majority of its population (Serbs,
Croats, Slovenians, Macedonians and Montenegrins). They were distinguished un-
der the Constitution from nationalities; namely minority groups within the SFRY,
whose ethnic group formed the majority population of neighbouring states such as

IIC Report, note above, .
Constitution of the Socialist Federal Republic of Yugoslavia, , Article .
Hungary and Albania. This distinction was important constitutionally, since, with
the status of nation came the constitutional right of self-determination;75 and, as
has been observed, so too would come recognition by the EC as the SFRY dissolved.76
The absence of republican status for Kosovo was, however, compensated for by
two factors in the 1974 constitution. First, as members of a nationality, Albanians
in Kosovo and elsewhere in the SFRY were protected by extensive rights guaran-
tees which also applied equally to Yugoslavias nations. Nationalities, for example,
enjoyed comprehensive language rights; discrimination on grounds of nationality,
race, and language was outlawed; and incitement to racial hatred and intolerance
were proscribed as unconstitutional. Secondly, Kosovo, as an Autonomous Prov-
ince of Serbia, enjoyed substantial executive, legislative and judicial autonomy; it
possessed its own constitution, and had legislative jurisdiction which extended to
defence and even foreign aairs. Although not a full republic, Kosovo also held a
seat in the Federal Parliament of the SFRY, together with a seat on the Constitutional
Court and on the Presidency.77
From the late 1980s onwards, a series of political and constitutional developments
took place within both the FRY and the Republic of Serbia by which much of the
autonomy Kosovo had enjoyed under the 1974 constitution was dismantled. Serbian
nationalism re-emerged as a force following the death of Tito in 1980, and central to
the Serbian idea of nationhood was Kosovo. It was the scene of the famous Turkish
defeat of the Serbian Army at the battle of Kosovo Polje in 1389, which was exploited
by Miloevi to emphasise the importance of Kosovo to Serbia; in a speech to a
rally in Belgrade on 19 November 1988, he declared: Every nation has a love which
eternally warms its heart. For Serbia it is Kosovo. That is why Kosovo will remain
in Serbia.78 Between 1989 and 1992, both Serbia and the SFRY embarked upon a
process of constitutional centralisation which terminated Kosovan autonomy, a pro-
cess which in turn led to the emergence of the strong separatist movement within
Kosovo.79 This process began in 1989 with constitutional changes, approved by the
Parliament of Serbia on 28 September, and eventually entrenched in the Constitu-
tion of the Republic of Serbia adopted in 1990. These changes required the approval
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 rec-
ognizes 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.// ( Oc-
tober ), Chapters I and II; and Krieger, note above, -.
Laura Silber and Allan Little, Yugoslavia: Death of a Nation (London: Penguin, ),
.
Surroi, note above.
of Kosovos legislative assembly, and by the placing of pro-Miloevi 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 substan-
tially 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 Constitutions]
provisions the autonomous provinces retained some authority over the provincial
budget, cultural matters, education, health care, use of languages and other mat-
ters, but the authority was thenceforth to be exercised only in accordance with de-
cisions 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 Miloevi at this time, since with Montenegro, Kosovo and Voivodina
under his inuence, 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 Kosovos 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 state-
hood or the status of a republic within the FRY but independent of Serbia.
Kosovo opposed these changes strongly, and a dening 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 dis-
solved 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 Serbias new Constitution. On 22 September 1991, with
war having broken out in Croatia, an unocial 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 Arti-
cle , and .
Surroi, note above, .
The referendum was conducted between and September and was largely
clandestine.
result in the referendum,89 the Kosovo Albanian leadership pressed on with its quest
for independence, holding presidential and parliamentary elections for the Republic
of Kosova on May 24, 1992 which resulted in the election of Ibrahim Rugova of the
LDK as President.90 This attempt by Kosovo Albanians to implement their unilateral
declaration of independence led rst, to a boycott by most Kosovo Albanians of both
Serbian and FRY elections, and secondly to the establishment of institutions by the
self-styled Republic, which now operated a separate system of public administration
running parallel to the Serbian system in a very elaborate process of civil disobedi-
ence.91 Following these developments, relations between Kosovo and both Serbian
and Federal authorities in Belgrade eectively broke down, leading ultimately by the
spring of 1998 to the armed conict which prompted the diplomatic initiatives of
this period.
It is important again to contextualise these constitutional upheavals, and the way
in which they presaged the military conict of the late 1990s, within the broader
theatre of the Wests involvement. The deterioration of relations between Belgrade
and Kosovo took place over a ten year period in which the international community
was elsewhere heavily involved in the detritus of Yugoslavias collapse. As such, those
international organisations which became involved from March 1998 onwards were
fully aware that the sense of injustice felt by Kosovo Albanians was a direct result
of both the constitutional centralisation practised by Belgrade since 1989 and the
disproportionate outcome of the Badinter process which had failed to oer Kosovo
any practical succour. Despite the lip-service oered to Kosovos right to internal
self-determination, it was clear that Belgrade, able to hide behind its territorial in-
tegrity, had in eect carte blanche to ignore the ECs plaintive demands for Kosovar
autonomy; Miloevi could rely upon the uti possidetis rule applied in 1991-2 which
did nothing to mitigate, and thereby could be seen tacitly to approve, Belgrades ear-
lier policy of constitutional centralisation.92
Therefore, in spite of its status as an Autonomous Province of the Republic of
Serbia under the 1974 Constitution, Kosovo was not eligible to apply to the Badinter
Commission for recognition; and for Kosovars, conscious of the autonomy they had
enjoyed under the 1974 Constitution, (which in their eyes accorded Kosovo de facto
republican status), and bearing in mind that Kosovo with a population which was
approximately 90 ethnic Albanian was the most ethnically homogeneous autono-
Of ,, eligible voters, participated and . voted for an independent Re-

public of Kosovo. See International Crisis Group, Kosovo Report, March ; Mi-
randa Vickers, Between Serb and Albanian: A History of Kosovo (New York: Columbia
University Press, ), -; Kumbaro note above, . Rehn, note above, Chap-
ter II(c) also conrms that over of those taking part opted for independence.
His party is reported to have polled . of the vote in the unocial election. Interna-
tional Crisis Group, note above, .
Vickers, note above, - and Kofos, note above, -. This government at-
tempted to function abroad, see International Crisis Group at , but its real inuence
has been perceived to be marginal, ibid. .
Kumbaro, note above, , and IIC Report, note above, -.
mous unit in the Federal Republic apart from Slovenia, it seemed particularly unjust
that Kosovo should be excluded from any possibility of statehood simply on account
of a formal distinction in the 1974 SFRY constitution between republics and autono-
mous provinces.93
This also brings us back to the question of self-determination. For Kumbaro who
saw in SC Res. 1160 and subsequent resolutions a recognition that Kosovars consti-
tuted a people with a right of internal self-determination, this constitutional process
constituted a denial of this right.94 From this she concludes that Kosovo Albanians
are entitled to invoke the saving clause of the General Assembly Declaration on
Friendly Relations which, she argues, recognises a right to external self-determi-
nation if a people is completely denied from (sic) meaningfully exerting the right
to self-determination internally.95 A similar argument is presented by the IIC in its
Follow Up Report of 2001 which reiterates the argument made in the Report of 2000
that Kosovo is entitled to conditional independence. This argument is based on, a
normative foundation: namely, the case for self-determination arises from the sys-
tematic abuse of the human rights of Kosovo Albanians over a long period and the
consequent withdrawal of the consent of the Kosovar Albanians to Serbian rule.96
It seems, therefore, that the Kosovo crisis highlights more than many other case
studies the inconsistencies and the lack of principle within application of the right of
self-determination as it has been applied since the end of the Second World War. As
critics have argued, when a viable, culturally dierentiated group is unable to escape
an oppressive state, particularly when other less homogeneous groups have been
able to do so due either to their successful use of force, or to an arbitrary application
of the uti possidetis principle by states exercising their power of recognition, then a
major question concerning the legitimacy of the principle of self-determination as
presently applied arises.
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 com-
mitment to the territorial integrity and political unity of sovereign and independent
states hints that a states entitlement to territorial integrity might be weakened if the
state is not conducting itself, in compliance with the principle of equal rights and self-
determination of peoples, and specically 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, ), .
sponse to the Kosovo crisis involved a diplomatic eort not only to restore peace and
alleviate humanitarian problems, but also to bring about a detailed constitutional
settlement which would restore to Kosovo the extensive powers of self government
it had lost since 1989. It is dicult to conclude that considerations like those which
preoccupied the Independent Report were not also at work in motivating Western
governments as they made strenuous eorts to reach an autonomy solution for Koso-
vo. The international initiative begun in March 1998 became nothing less than an at-
tempt to impose an overall constitutional settlement which would restore Kosovos
autonomy to at least its pre-1990 position, and in doing so, perhaps undo some of the
injustice Kosovo felt with regard to the Badinter process and the unful lled assur-
ances of minority rights and internal self-determination which it had purported to
deliver. This is evident if we return to our account of events towards the end of 1998.
Although the aftermath of the October Agreements and of SC Res. 1203 initially saw
a stabilisation in the situation on the ground with a cautious welcome accorded to
it by both sides,97 things soon began to deteriorate and in particular, the November
dead-lines for electoral rules etc. were not met.98
From the beginning of 1999 ominous signs of a breakdown in the political process
began to appear; by the end of 1998 little progress had been made and by January
1999 Western patience was wearing thin particularly as occasional atrocities con-
tinued to be committed by the security forces.99 However, although the political
agreement brokered by Holbrooke fell apart, it would be wrong to say that there was
a sudden lurch towards humanitarian catastrophe; rather it was the failure of the
political deal hatched in October which seemed to set in motion the nal diplomatic
push for a solution to the crisis. NATO held an emergency meeting on January 17,100
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 re-
ported, alarming signs of potential deterioration. UN Doc. S// ( Decem-
ber ), para. , and that violence had reached its highest level since the October
Agreement. Similarly the humanitarian problems remained very severe with the UN-
HCR estimating that , people remained displaced within Kosovo. Ibid. para. .
The build up to the Rambouillet process and the nal ultimatum from NATO which
eventually triggered air strikes can be traced to a massacre reported on January
where at least forty ve people from the village of Racak near Pristina were reported to
have been killed by the security forces. President Clinton declared: This was a deliber-
ate 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 justication for it. US Ambassador William Walker, the head of the
OSCE force monitoring the cease-re also accused Serbian security forces of mass mur-
der. Villagers Slaughtered in Kosovo Atrocity Scores Dead in Bloodiest Spree of Con-
ict, The Washington Post, January . For reports of earlier violence on both sides
see also OSCE Press Release No. /, December , and US Department of State
Oce 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
which was followed by a Contact Group meeting of January 22, and a call to both
sides to come to peace talks soon followed. At a subsequent meeting on January 29,
the Contact Group summoned representatives from the FRY, Serbia and the Kosovo
Albanians to meet at Rambouillet by February 6, to begin negotiations with the
direct involvement of the Contact Group.101 This call, backed by a threat of NATO
military action,102 was again hedged in the language of humanitarian problems, with
the statement of 30 January issued by the NAC suggesting that NATOs strategy was
designed to avert a, humanitarian catastrophe.103 What is remarkable about this
nal attempt to broker a settlement is that, as talks got under way at Rambouillet in
France in February, both sides were presented with what amounted to a virtual fait
accompli: a detailed agreement, which included a fully detailed autonomy model for
Kosovo, and provision for an international peacekeeping force in the region, which
both sides were expected to accept. Furthermore, this was backed up by the threat
of force directed in particular at the FRY side. As a Washington spokesman put it:
If the Serbs fail to agree to the ... plan and the Kosovar Albanians do the Serbs
will be subject to air strikes.104 Tim Judahs laconic summation of the situation was:
both sides were being told: Sign or die.105After weeks of negotiation the Kosovo
Albanian side did indeed sign an agreement on 18 March and the FRYs refusal to
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 nal 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 Head-
quarters, January .
Washington Renews Warnings to Serbs over Accepting Kosovo Agreement, Associ-
ated Free Press, February .
do so led directly to air-strikes, following a nal intervention by the OSCE,106 com-

mencing on March 24 in Operation Allied Force.107
Perhaps more than any other initiative over the previous twelve months, the Ram-
bouillet 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 sum-
mer/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 nal settlement for Kosovo, on the basis of the will of the people,
opinions of relevant authorities, each Partys eorts regarding the implementation of
this Agreement, and the Helsinki Final Act, and to undertake a comprehensive as-
sessment 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 Wests ambivalence
on the self-determination question, in particular on the question of statehood for
Kosovo. On the one hand, on oer was a nal 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 justication
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 instrumen-
tal in that they served as legal justication 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 Miloevi shortly before the bombing started. As Judah
notes: Instead of mentioning that tens of thousands were again in ight, he says he
told Milosevic that Serbia would be bombed: if you dont change your position, if
The OSCE reported that Chairman-in-Oce Norwegian Foreign Minister Knut Vol-
lebaek, telephoned President Miloevi on March and urged him to accept the Ram-
bouillet interim agreement and put an end to the excessive use of force by FRY and
Serbian forces in Kosovo. OSCE Press Release, Vienna, March .
Javier Solana, NATO Secretary-General announced the commencement of air opera-
tions against the FRY on March . NATO Press Release () , March . For
a discussion of the Rambouillet process and the agreement see Weller, note above.
The IIC Report notes the lack of veried data at this time, but still concludes, apart
from the shocking exception of the Recak/Racak [applying both Albanian and Serb
place names] massacre, it is reasonable to assume that the number of civilian killings
was signicantly lower than during earlier months. ICC Report, note above, .
Chapter , Article ().
you dont agree to negotiate and accept Rambouillet as the basis of the negotiation.111
This leads Judah to conclude that the Wests motives were mixed: The humanitarian
catastrophe was a part of the reason but the other part was a modern-day version
of gun-boat diplomacy.112 Gun-boat diplomacy, it is submitted, which had as its pri-
mary aim an autonomy settlement for Kosovo.
4 Concluding Remarks
The Kosovo intervention suggests that the Badinter process has cast a long shadow
with its application of the uti possidetis principle and with recognition being ac-
corded exclusively to sub-state constitutional republics as Yugoslavia dissolved.113
This restriction has sown predictable seeds. The war in Bosnia was one, and the end-
less machinations over the nal status for Kosovo is another. As the international
community attempts to arrive at a nal status for Kosovo today the Badinter process
hangs over it. But this is not to suggest the issue is anything but complex. Even those
who advocate recognising Kosovo as an independent state are mindful of the need
to provide adequate protections for the minority rights of non-Albanians are guar-
anteed.114 But these critics of the EC approach to recognition and of its implications
for Kosovo have marshalled the principle of self-determination in forming their ar-
guments. Kumbaros contention that Kosovar Albanians as a people are entitled to
external self-determination given that the internal manifestation of this right has
been so egregiously denied by the FRY, has been noted above.115 Kumbaro nds the
legal basis for this assertion in the Declaration on Friendly Relations. A similar ap-
proach was taken by the IIC Report which makes no explicit reference to the UN
Ibid. .
Ibid. . What is also notable is that the Security Council seemed to support the Ram-
bouillet initiative; when the Contact Group issued its demand on January that
the parties meet at Rambouillet, this was supported by a Security Council Presidential
statement on the same day. UN Security Council Presidential Statement, January
. See Weller, note above, . The Contact Group statement of January had
also repeated the demands that the FRY comply with existing Security Council resolu-
tions.
For example, the contrasting fortunes of the self-condent, internationally-active, EU
Member State Slovenia and those of Kosovo remain today very stark.
Kumbaro, note above; IIC Report, note above. See also the House of Commons
Foreign Aairs Committee Report which states: Independence is out of the question
until the safety of Kosovos minorities can be guaranteed. (emphasis added), HC Foreign
Aairs Committee Fourth Report, March , para. ; and again: independence
should be ruled out until the other elements of UNSCR have been achieved in
particular a safe environment for all the people in Kosovo [i.e. Annex .]. (para.
). Ironically, this was the very same proviso attached to provisional recognition of
Croatia by Badinter Arbitration Commission, Opinion on the Recognition of the Re-
public of Croatia by the European Community and its Member States, Opinion No.,
International Legal Materials (): . See also Laponce, note above.
Kumbaro, note above, and .
declaration but which, in substantive terms, oers a similar argument to Kumbaros:

it is important to emphasise the normative case for Kosovos 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 condi-
tional independence for Kosovo,117 and we saw how prominent states began to move
their positions in this direction. The British House of Commons Foreign Aairs Se-
lect Committee Report, for example, in 2001 oered 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 Pan-
doras Box threat of widespread secession.119 Kumbaros reference to the Friendly
Relations Declaration suggests that for her, Kosovo represents an extreme case of
human rights abuses, and that Kosovos entitlement to exercise external self-deter-
mination 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 tak-
ing a wider approach to the self-determination principle than the vigorous delimita-
tion 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 be-
tween the recognition criteria applied in and the Friendly Relations Declaration.
If in terms of the criteria, a state should only be recognised if it respects human
rights (in particular, minority rights), this seems to bolster the arguments of those who,
in reading the Friendly Relations Declaration argue that it implies that a state might
forfeit its territorial integrity in respect of an internal people possessed of a right to
internal self-determination which it systematically denies them.
IIC, note above, -.
House of Commons Report, March , para. .
Thomas Francks nightmare world of states. Thomas Franck, The Empowered Self:
Law and Society in the Age of Individualism (Oxford: Oxford University Press, ),
chapter . Indeed the declaration of independence issued by Kosovo states; Observing
that Kosovo is a special case arising from Yugoslavias non-consensual breakup and is
not a precedent for any other situation .
IIC, note above, .
Ibid.
ment of intervention.122 This scenario begins to beg the question whether we might
see within international customary law the emergence of a limited right of seces-
sion perhaps along the lines advocated by Hurst Hannum who argues that: such a
right should be supported, but only under very narrow conditions. These conditions
might include situations where secession is the only plausible response to continu-
ing, massive, discriminatory human rights violations (arguably the case for Kurds in
Iraq and Turkey in the 1980s and Tibetans in China during the Cultural Revolution)
or where secession might be employed retroactively as a means of punishing egre-
gious violations of humanitarian law (as occurred in Kosovo).123 This idea of a right
emerging under this latter scenario, as a punitive device, seems unlikely given the
vehement opposition to Kosovos secession by a number of states124, and indeed high-
ly incommensurable with the existing principle of self-determination; in addition, it
would lead to an even greater politicisation of the law of self-determination than that
which already prevails. Instead, if a wider approach to the external application of the
self-determination principle is to emerge, the scenario oered by both Kumbaro and
the IIC would seem to oer the basis for a more principled way to proceed, and one
which more faithfully reects the spirit of the Friendly Relations Declaration.
Certainly the present position in Kosovo seems untenable as was recognised a
decade ago.125 The paradox today is that Western intervention was clearly motivated,
at least in part, by the removal of Kosovos autonomy by Belgrade, but that, with
Belgrades authority over Kosovo eectively ended, the United Nations Interim Ad-
ministration Mission in Kosovo (UNMIK) in eect performed the role of preserving
the FRYs technical territorial integrity in the face of a clear desire for independence
by Kosovar Albanians. The West, having struggled for so long to restore Kosovos
autonomy from the grip of constitutional centralisation, was left with the task of
trying to secure the FRYs territorial integrity in the face of de facto independence for
Kosovo on the ground; a position which ten years on is unsustainable.
Ultimately the reasons behind Western determination to secure autonomy for
Kosovo are complex. The most important factor seems to have been the history of
Yugoslavia over the past decade in which the West has been so heavily embroiled,
but this does not provide a complete answer. Another factor, and one with poten-
tially wider implications, is a growing sense, certainly within Europe, that national
minorities are entitled to better recognition of their rights as minorities, and per-
haps even to a right of autonomy. Various instruments have made a move in this
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 (Lon-
don: 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
(): .
direction: for example, the CSCE Copenhagen Document of 1990;126 the Council
of Europe Framework Convention for the Protection of National Minorities 1995;
and the Lund Recommendations on Eective Participation by National Minorities
in Political Life, adopted in 1999.127 These initiatives which were being implemented
at the same time as Belgrade was consolidating its grip on Kosovo made the re-
moval of that provinces autonomy even more embarrassing for the European pow-
ers particularly as they were still smarting over their failures in Bosnia.128 It seems
therefore, that one of the long-term implications of the Kosovo intervention is the
consolidation of a growing European commitment to the rights of internal minori-
ties; in this context the nal solution to Kosovos status when it comes may bring
with a wider and more expansive approach, at least within Europe, to the right of
autonomy for national minorities.

Foundation on Inter-Ethnic Relations, The Lund Recommendations on the Eective Par-
ticipation of National Minorities in Public Life & Explanatory Note (The Hague: Foun-
dation 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 federa-
tions collapsed. Indeed throughout the negotiations on Kosovos 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 Kos-
ovo as a stepping stone to full independence.
Chapter 9 Kosovos Independence:
Re-Examining the Principles Established
by the EC Badinter Commission in Light of
the ICJs 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 Commissions fteen Opinions1 have signicantly
inuenced state practice in matters such as minority rights, border change and state
secession and recognition. For example, the opinions were invoked in the contexts
of Northern Cyprus,2 Scotland,3 Quebec4 and South Africa.5 However, Kosovos Uni-
lateral Declaration of Independence in 2008 casts doubt as to whether the principles
established in the Commissions opinions remain valid, because they explicitly pre-
cluded unilateral secession of sub-state units and limited the exercise of the right to
self-determination of minorities to choice of identity. Moreover, it is the Kosovos
For interpretation of various opinions see Ruth Lapidoth, Autonomy: Potential and
Limitations, International Journal on Group Rights (): ; Dominic McGoldrick,
From Yugoslavia to Bosnia: Accommodating National Identity in National and Inter-
national Law, International Journal on Minority and Group Rights (): ; Martti
Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Prac-
tice, International and Comparative Law Quarterly (): .
Z. Nectagil, The Cyprus Question and the Turkish Position in International Law (Ox-
ford: Oxford University Press, ), -.
Catriona Drew, Independence through Devolution Scotland, Self-Determination and
the Badinter Paradox, Juridical Review (): -.
Thomas Franck et al., Territorial integrity of Quebec in the event of the attainment of
sovereignty, . Accessed September . http://www.tamilnation.org/selfdeter-
mination/countrystudies/quebec/quebec.htm; Peter Radan, The Borders of a Future
Independent Quebec: Does the Principle of Uti Possidetis Juris Apply? Australian Jour-
nal of International Law (): -.
John Dugard, Secession: Is the Case of Yugoslavia is a Precedent for Africa? African
Journal of International and Comparative Law (): -.
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 rst part of the chap-
ter discusses the content of relevant opinions of the Badinter Commission (mainly
Opinions Nos. 1-3), while part two highlights events leading to Kosovos unilateral
secession. Part three then analyses the advisory opinion of the International Court
of Justice (ICJ) on Kosovos 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 Commissions Opinions
a A Historic Overview of the Badinter Commissions 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 conict-
ing interests of the Yugoslav peoples was resolved peacefully.
Although the Badinter Commission is referred as if it was engaged in arbitra-
tion 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 ve judges of the EC
member states constitutional courts, it would be logical for the Badinter Commis-
sion 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 ex-
plain 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
Kosovos Independence: The Lessons for Scotland, August . Accessed Septem-
ber . http://www.ucl.ac.uk/constitution-unit/ les/media/articles//Kosovo.
pdf; Kamer Kasim Cyprus Question and Kosovo, February . Accessed Sep-
tember . http://www.turkishweekly.net/columnist//cyprus-question-and-kos-
ovo.html.
Michla Pomerance, The Badinter Commission: The Use and Misuse of the Internation-
al Court of Justices Jurisprudence, Michigan Journal of International Law (): .
Chapter 9, Gulara Guliyeva Kosovos Independence 281
ing on the EC.8 Subsequent reconstitution in January 1993,9 authorised the Badinter
Commission to issue opinions binding on the parties concerned.
Following Croatia and Slovenias declarations of independence in 1991, the EC
invited the six constituent republics of the SFRY, namely the Republics of Bosnia-
Herzegovina, Croatia, Macedonia, Montenegro, Slovenia and Serbia to apply for the
EC recognition by 23 December 1991. The Arbitration Commission was to consider
each of these applications. The formal mandate of the Badinter Commission was to
resolve dierences submitted by relevant authorities. Signicantly, the Declaration
on Yugoslavia failed to specify these authorities, and it was mainly Lord Carrington
who formulated questions and sought the Badinter Commissions opinion. The role
of the Badinter Commission in practice, however, was to provide legal justication
for the political decisions of the EC.10 In particular, by suggesting that only the re-
publics of the SFRY, and not autonomous units could apply for recognition, the EC
established that, former internal federal borders would become international bor-
ders upon the recognition of statehood of a seceding federal unit.11 The following
two sections briey outline the relevant principles as established by the Badinter
Commission in Opinions Nos. 1-3.
b Territorial Integrity of States and the Principle of Uti Possidetis Juris

From the outset, the Badinter Commission strongly upheld the principle of the ter-
ritorial integrity of states in line with the ECs stance on the recognition of the con-
stituent 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 Commis-
sion. Thus, the EC recognised Croatia before it ful lled conditions as outlined in the
Commissions opinion: Opinions on Questions Arising from the Dissolution of Yugosla-
via, January and July , International Legal Materials (): , (Opinion
No. ). Conversely, the EC deferred recognition of Macedonia while the Commission
decided that it met all the recognition criteria. Conference on Yugoslavia Arbitration
Commission Opinion No. on the Recognition of the Socialist Republic of Macedonia
by the European Community and its Member States, International Legal Materials
(): . In the case of Croatia, recognition was driven by Germany, whereas Mac-
edonia was not recognised due to the Greek objection to the use of Macedonia out of
fear that there could be territorial demands to Greece. See Carl Hodge, Botching the
Balkans: Germanys Recognition of Slovenia and Croatia, Ethics and International Af-
fairs ().
Reconstitution of the Arbitration Commission, and Rules of Procedure, January-
April , International Legal Materials (): -. For discussion see Pomer-
ance, note above, -.
Peter Radan, Post-Secession International Borders: A Critical Analysis of the Opinions
of the Badinter Arbitration Commission, Melbourne University Law Review ():
.
Ibid. .
EC, Declaration on Yugoslavia, UN Doc S/, Annex (); International Legal
Materials (): .
nition of New States.13 Signicantly, in light of Croatia and Slovenias declarations

of independence on 25 June 199114 and similar events taking place in Macedonia and
Bosnia-Herzegovina, it was dicult to reconcile the principle of territorial integrity
with the right of the republics to secede from the SFRY. To conrm the ECs position
on the matter, as well as to avoid setting precedents for other secessionist move-
ments in other countries, in its Opinion No. 1, the Badinter Commission ruled that
the SFRY was in the process of dissolution.15 The dierence between dissolution and
secession is that in the former process there is no formal successor of the pre-exist-
ing 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 be-
came international frontiers protected by international law and could not be altered
except by an agreement between newly created states.17 Signicantly, the Badinter
Commission overlooked the fact that the internal administrative borders of the
SFRY were never intended to become international frontiers, as Radan demonstrat-
ed in an historic overview of the evolution of the SFRYs 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 char-
acter.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 justication for insisting that the SFRYs administrative boundar-
ies should remain intact.20
Nevertheless, to avoid territorial disputes between the republics, the Badinter
Commission conrmed the ECs position, stating that the internal boundaries would
become international frontiers. The Commission justied this nding 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 Materi-
als (): .
For discussion of Croatia and Slovenias secession see Peter Radan, The Badinter Arbi-
tration Commission and the Partition of Yugoslavia, Nationalities Papers () ():
-.
Opinion No. of the Arbitration Commission of the Peace Conference on Yugoslavia,
November , International Legal Materials (): .
Peter Radan, Yugoslavias Internal Borders as International Borders: A Question of Ap-
propriateness, East European Quarterly : (): -.
Ibid. .
Radan, note above, ; Malcolm Shaw, Peoples, Territorialism and Boundaries, Eu-
ropean Journal of International Law (): .
national law. To conrm this nding the Commission selectively quoted an extract
from the case between Burkina Faso and Mali21 decided by the ICJ. In paragraph 20
of the judgment, the ICJ stated that:
[n]evertheless the principle is not a special rule which pertains solely to one specic sys-
tem of international law. It is a general principle, which is logically connected with the
phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new states being endangered by fratricidal
struggles ...22
What the Badinter Commission omitted to mention is the last part of the sentence
in which the ICJ explicitly referred to the decolonisation context of the case. As a
result, outside the decolonisation context (despite the oppressive regime they had
been under, the former republics of the SFRY did not t the denition of a colony),23
the Commission is the only authority which has relied on uti possidetis juris as a
general principle of law.
The application of the principle of uti possidetis juris as a general principle of
international law created a mixed reaction from commentators. The majority of au-
thors strongly criticised the Badinter Commission for the misapplication of inter-
national rules.24 In particular, Radan argued that the principle of uti possidetis juris
applied to border disputes which arose because it was not clear where the exact
colonial border passed. Thus, the principle had: nothing to do with situations where
borders were clear. The dispute was over a claim by one state to territory which
belonged to another.25 Besides, the principle does not preclude change of bound-
aries in the context of decolonisation.26 Accordingly, in the context of the former
Yugoslavia the principle did not apply because the issue was not the exact location of
borders, but rather whether the internal borders should be regarded as international
boundaries.27
Burkina Faso and Mali (Frontier Dispute), ICJ ( December).

Ibid. .
Hurst Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bot-
tles? 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 Aairs : (): .
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 oric, The Legality of Uti Possidetis in the denition of Kosovos
Legal Status, -. Accessed September . http://www.esil-sedi.eu/chiers/en/
Agora_Fernandez_.pdf.
In contrast, others welcomed developments stemming from the Badinter Com-

missions interpretation. Shaw, for example, argued that since its creation, the prin-
ciple of uti possidetis juris has signicantly evolved and it is only natural that the
Badinter Commission should further expanded the scope of its application.28 Simi-
larly, Koskenniemi noted that the Commission vigorously a 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 seces-
sionist states.30 An overall impact of these principles as interpreted by the Badinter
Commission is twofold: rst, the principle of uti possidetis juris is invoked beyond
the former Yugoslavia; second, it seems that the application of the principle is con-
ned 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 eectively cease to exist. The eect of this
nding 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 Kurd-
ish 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 pro-
tection of minority rights in a state other two important principles which the
Badinter Commission had innovatively interpreted? The following section overviews
the Commissions 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 Commissions Opinion No. 2, which is of particular interest. On 20 Novem-
ber 1991, on behalf of the Republic of Serbia, Lord Carrington asked the Commis-
sion 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, .
Radan, note above, ; Radan, note above, .
changes to existing frontiers at the time of independence (uti possidetis juris) except
where the states concerned agree otherwise.32 Thus, eectively, the Badinter Com-
mission sealed the borders established as a result of the former Yugoslavias dissolu-
tion. If borders cannot be altered, then how can a group exercise the right to self-
determination? In balancing the right of states to territorial integrity and the right of
peoples to self-determination, the Badinter Commission reasoned as follows:
First, where there are one or more ethnic, religious or linguistic minority groups
in a state, they were to have the right to recognition of their identity under interna-
tional law. Moreover, the now peremptory norms of international law require
states to ensure respect for the rights of minorities. Consequently, the Serbian pop-
ulation in Bosnia-Herzegovina and Croatia was to be protected as a minority group
under national and international rules.33
Second, the principle of self-determination, enshrined in Articles 1 of the In-
ternational Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR), served to safeguard
human rights. Accordingly, by virtue of this right: every individual may choose to
belong to whatever ethnic, religious or language community he or she wishes. In the
Commissions view one possible consequence of the principle of self-determination
was for the members of the Serbian population in Bosnia-Herzegovina and Croatia
to be recognized under agreements between the Republics as having the nationality
of their choice, with all the rights and obligations which that entails with respect to
the states concerned.34
Both of these ndings had a mixed reception. Where minority rights are con-
cerned, the Badinter Commission expressed the view that their protection con-
stituted a peremptory norm of international law, i.e., a fundamental principle of
international law accepted by all states, which permits no derogation, such as the
prohibition of genocide or torture. Until 1992, however, the global minimum stan-
dard on the protection of minorities was article 27 of the ICCPR, which has a rather
vague wording and limited scope of protection. In fact, minority rights texts were
mainly developed in 1990-1995 and one of the impetuses for such development was
grave violation of minority rights in the former Yugoslavia. Even then there was a
general unwillingness of states to accord minorities extensive rights which would
radically deviate from general human rights norms.35 The eorts to elaborate specic
rules on minority rights culminated in the Framework Convention for the Protec-

Given the outbreak of wars and ethnic cleansing initiated by Serbia in Bosnia-Herze-
govina and Croatia, it was not possible to satisfy this requirement prior to the conclu-
sion 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 : (): .
tion of National Minorities (FCNM) the rst multilateral legally binding treaty on
the rights of minorities, which came into existence in 1995. Therefore, the Commis-
sions proposition that in January 1992 (when Opinion No. 2 was issued) minority
rights constituted a peremptory norm of international law was neither explained nor
supported by state practice.
As to the principle of self-determination, it appears that in the Commissions
view, the exercise of this right was limited to choice of identity or nationality. Before
we analyse this statement, let us rst briey overview the traditional approach to the
principle of self-determination. There is no denition of the term self-determina-
tion. The content of this principle, however, evolved signicantly since its inception.
Self-determination emerged as a political principle after World War I and during the
rst third of the twentieth century it, meant independence for states emerging from
fallen empires.36 After World War II, self-determination became a legal principle
enshrined in Articles 1(2) and 55 of the UN Charter as one of the cornerstones of
developing friendly relations between states. Furthermore, in the period of decolo-
nisation, it transformed into a legally binding right to be free from colonial domina-
tion.37 In the post-colonial context, self-determination evolved once again with an
increasing emphasis on the external and internal exercise of this right.
External self-determination empowers people to, choose their own sovereignty
and to be free from external coercion or alien domination, which might end up in
independence and creation of a sovereign state.38 Less-established, though increas-
ingly invoked, internal self-determination is the right to eective participation in
the political process within a state.39 Signicantly, outside of the colonial context,
the exercise of the right to external self-determination does not authorise a group
to secede automatically from a state, as that clashes with the principle of the territo-
rial integrity of states; rather, the realisation of such claims may take place through
autonomy and internal self-determination.40
Now let us turn to the principles established by the Badinter Commission. In
Opinion No. 2, the Commission armed that, while self-determination applied to
minorities, such as Serbs, it did not entitle them to claim statehood; instead, self-
determination in this context was reduced in content to human and minority rights,
Michael Kelly, Political Downsizing: the Re-emergence of Self-Determination, and the

Movement Towards Smaller, Ethnically Homogenous States, Drake Law Review
(-): .
Sneana Trifunovska, One Theme in Two Variations Self Determination for Minori-
ties 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 Kosovos Genesis upon the Doctrines of International Law, German Law Journal :
(): .
and to autonomous structures of governance in areas where the Serbs constituted a

local majority.41
Accordingly, the Badinter Commissions construal implied that self-determina-
tion 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 connes of federal units of the
former Yugoslav state, rather than the state as a whole.43 The Badinter Commission
itself conrmed that Slovenia and Croatia seceded before the SFRYs dissolution be-
gan: 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 conned the operation of self-
determination within a territorial framework, instead of an ethnic one.
As to the Badinter Commissions equation of the principle of self-determination
under common Article 1 of the Covenants with the right to identity, according to
Pellet, although the Commissions statement may appear superuous 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 eect, the Commission estab-
lished 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 Aairs :

(): .
Mria Kovcs, Standards of Self-Determination and Standards of Minority-Rights in
the Post-Communist Era: a Historical Perspective, Nations and Nationalism : ():
-.
national 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 ():
.
In contrast, Article 1 ICCPR is much broader. As the UN Human Rights Commit-

tee 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 condi-
tion for the eective 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 Conse-
quently, the Badinter Commissions apparent theoretical widening of the denition
of self-determination so as to embrace the individual self had the practical eect of
restricting the right of some of the claimants to the collective right of complete self-
determination and independence.49
It is, furthermore, argued that by conning the principle of self-determination to
the right to identity, the Commission, without an express statement to that eect,
appeared to link the rights of minorities to the rights of peoples.50 The Commission
argued that not only was the term peoples undened, but also there were no rules
on how the right to self-determination of peoples should be exercised; therefore, in
the Commissions view: in its present state of development, international law does
not make clear all the consequences which ow 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 encompass-
ing the whole population of any State. Instead of this, one must recognize that within one
State, various ethnic, religious or linguistic communities might exist. These communities
similarly would have, according to Opinion No. 2, the right to see their identity recognized
and to benet from all the human rights and fundamental freedoms recognized in inter-
national law, including, where appropriate, the right to choose their national identity.51
This approach has been, however, strongly criticised for adding, nothing to our un-
derstanding of the crucial distinction between minorities and peoples.52 Further-
more, by invoking various principles of international law without clear and con-
vincing reasoning, the Badinter Commission, only revived the fruitless search for
denitions of self, determination, peoples, and related terms that have never been
capable of providing reasoned criteria for international action.53
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//fcdffcedb?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.
Ibid, .
In addition, the Badinter Commissions reference to the choice of nationality as

one of the means of exercising the right to self-determination caused further con-
fusion, because the Commission failed to clarify whether it dierentiated 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 Commissions reasoning was not always clear.
Moreover, the opinions prompted commentators to make sense of them by provid-
ing their own reading of the principles as elaborated in the opinions.
Despite these deciencies, it appears that the principles established by the Bad-
inter Commission resonated with the international community and have inuenced
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 ndings are, however, challenged by the Unilateral Declaration of Indepen-
dence of Kosovo on 17 February 2008. Before we evaluate the validity of the Badinter
Commissions Opinions in light of the ICJs Advisory Opinion on Kosovos indepen-
dence, it may be useful to overview briey the events which led to Kosovos external
self-determination.
3 Setting a Precedent? Kosovos 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 inhab-
ited 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, transform-
ing Kosovo into the centre of Serbian religion and culture.
The inuence of Serbs in Kosovo remained strong until the Ottoman Empires
occupation in the 14th century. Since the 14th century, not only did Albanians mi-
grate 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 Alba-
nians 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 (): -.
Blint Szolcsnyi, Historical, Legal and Political Dimensions of the Kosovo Crisis, EU
Working Papers (), .
Ibid. .
Empire, did Serbs manage to regain control over Kosovo in 1912, which led to the
oppression of Kosovo Albanians.
During World War I, Albania and Serbia supported opposing powers: the former
fought on the side of the Alliance,57 while the latter sided with the Entente.58 In 1915
Serbs were pushed out of Kosovo. However, by 1918 Serbs regained control over the
province and took their revenge on Albanian population. The oppression of Kosovo
Albanians was so strong that they sought to become independent. In 1921, Kosovo
Albanians requested the League of Nations approval to secede from the Kingdom
of Serbs, Croats and Slovenes (formed on 1 December 1918 and known as the King-
dom of Yugoslavia from 1929), because the government did not guarantee the rights
of Kosovo Albanians, out of whom 12000 had been killed and 22000 imprisoned
between the 1918 and 1921.59 Approval was not granted and the request resulted in
escalation of tension between the groups.
During World War II, history repeated itself: Kosovo was occupied by Albania
(and partly Nazi Germany) in 1941, with Slavs regaining control by 1944.60 Kosovo
was re-incorporated into the former Yugoslavia and the 1946 Constitution granted it
the status of a region. Both the 1953 law and the 1963 Constitution limited the scope
of Kosovos autonomy. This resulted in dissatisfaction of Kosovo Albanians with the
regime and prompted demands for secession in 1968.61 To remedy this situation, the
1974 Federal Constitution granted full autonomy to the province of Kosovo. The
status of the province resembled that of the six republics in the Yugoslav Federation,
lest for the right to secede from Yugoslavia.62
The dierence between republics and provinces was based on the doctrine of
nations and nationalities. This doctrine was used by the architects of the Yugoslav
federal system in 1943 as the basis for identifying groups entitled to have their own
republics. Thus, groups which did not have a homeland outside Yugoslavia were re-
garded as nations entitled to self-determination within a republic, while nationali-
ties, such as Kosovo Albanians, were groups which had an external kin-state; there-
fore, they could enjoy an autonomy regime only. Despite this distinction, Kosovo
was almost on an equal footing with the republics and had direct representation in
federal institutions, and its own constitution, parliament and judiciary.63
The major Alliance powers were Germany, Austria-Hungary, the Ottoman Empire, and
Bulgaria.
The key members of the Entente were the United Kingdom, France, the Russian Empire
and the USA.
Szolcsnyi, note above, .
Ibid.
Jure Vidmar, International Legal Responses to Kosovos Declaration of Independence,
Vanderbilt Journal of Transnational Law (): .
Szolcsnyi, note above, .
Andreas Zimmermann, Yugoslav Territory, United Nations Trusteeship or Sovereign
State? Reections on the Current and Future Legal Status of Kosovo, Nordic Journal of
However, from the late 1980s, the Serbian authorities started systematically re-
stricting the autonomy of Kosovo. The 1988 Constitutional amendments precluded
Kosovo from exercising control over their, police force, their criminal and civil
courts, their civil defence and their economic and education policy.64 Furthermore,
the amendments signicantly limited the use of Albanian as an ocial language in
Kosovo. For these amendments to become eective, Kosovos Parliament had to ap-
prove them. To acquire such consent, Serbia deployed police forces and the federal
army, which surrounded the Kosovo parliament building until the parliament ac-
cepted the constitutional amendments on 23 March 1989.65
In response to the gradual abolition of autonomy, Kosovos Parliament exercised
an act of internal self-determination and declared the province an independent en-
tity within the Yugoslav Federation, equal to other republics. In response, the Ser-
bian authorities reacted by, dissolving both the Kosovo parliament and the ruling
government and by expelling 80,000 Kosovo Albanians from state employment.66
Control over Kosovo was entrusted to the Vice President of the Serbian Parliament.67
After Serbias abolition of Kosovos autonomy, members of the dissolved parlia-
ment drafted a constitution and held a secret referendum on the independence of
Kosovo in September 1991; not surprisingly, the majority of Kosovo Albanians sup-
ported the independence. Moreover, on 18 October 1991, Kosovo applied for EC rec-
ognition. However, Kosovos Declaration of Independence, as well as its request for
recognition, were largely ignored, because it did not have the status of a republic.68
On 24 May 1992, Kosovo held secret elections and established a parliament and a
president; because of the military presence of Serbia, newly-elected ocials and in-
stitutions failed to govern Kosovo. The 1992 Yugoslav Constitution made no refer-
ence to the formerly autonomous status of Kosovo.
In the second half of the 1990s, there were, uprisings of dierent local armed
groups under the banner of the Kosovo Liberation Army (KLA).69 KLA attacks
on both military and civilian targets in 1997 and 1998 led to intensied reaction
from the Yugoslav security forces.70 Hostilities were eventually brought to an end by
NATOs intervention. Moreover, in 1999, NATO forced Serbia to agree to grant self-
government to Kosovo. Under Resolution 124471 Yugoslavia was obliged to:
Ibid.
Ibid.
Ibid. .
Ibid.
Marc Weller, Contested Statehood: Kosovos Struggle for Independence (Oxford: Oxford
Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of Ko-
sovos Territorial Status, European Journal of International Law (): .
Ibid.
UN Security Council, Resolution (), UN Doc. S/RES/ ( June ).
[P]ut an immediate and veriable end to violence and repression in Kosovo, and begin and
complete veriable phased withdrawal from Kosovo of all military, police and paramili-
tary forces according to a rapid timetable, with which the deployment of the international
security presence in Kosovo will be synchronized.72
Furthermore, there was an attempt to reach a political solution on Kosovos 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 self-
determination and statehood.73
The response of the international community did not favour either of these posi-
tions. 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, Serbias control over Kosovo was signicantly 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 Koso-
vo and facilitate a, political process designed to determine Kosovos future status.74
Having overviewed the principles established in the Badinter Commissions opin-
ions on uti possidetis juris, self-determination and the rights of minorities, as well
as the circumstances leading to Kosovos independence, the next part of the chapter
turns to the analysis of the ICJs Advisory Opinion.
4 External Self-Determination of Minorities? The Advisory Opinion of the

ICJ on Kosovos Independence
On 8 October 2008, the UN General Assembly requested the ICJ to issue an adviso-
ry 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 Kosovos Declaration of Independence did not violate
any applicable rule of international law.
Does this nding mean that in exceptional circumstances a minority group may
externally self-determine? In his dissenting opinion, Judge Koroma strongly criti-
cised the ICJ for setting a very dangerous precedent by accepting the external self-de-
termination 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 Unilat-
eral Declaration of Independence in Respect of Kosovo, ICJ para ( July).
without the latters consent. The Judge lamented that the ICJ did not built its argu-
ments on the Reference re Secession of Quebec,77 where the Supreme Court of Canada
ruled that outside of the colonial context, the right to self-determination should
be exercised within the framework of the existing state, except, possibly, where, a
people is denied any meaningful exercise of its right to self-determination within
the state of which it forms a part.78 Judge Koroma insisted that the ICJ should have
completed this picture by ruling that international law does not grant minorities an
explicit or implicit right to secede unilaterally from a State.79 Overall, in his view, the
ICJs, Opinion will serve as a guide and instruction manual for secessionist groups
the world over, and the stability of international law will be severely undermined.80
The dissenting judges criticism suggests that, the Advisory Opinion invalidated
the Badinter Commissions Opinions by establishing that a minority group may ex-
ternally self-determine. Let us consider the implications of the ICJs Advisory Opin-
ion more closely. In dealing with the legality of Kosovos secession, the ICJ focused
on assessing whether or not the Declaration of Independence was in accordance
with international law.81 This emphasis allowed the Court to exclude explicitly mat-
ters relevant to the external self-determination of minorities, such as the assessment
of the legal consequences of the Declaration, whether or not Kosovo had achieved
statehood, and the validity or legal eects of the recognition of Kosovo by those
states which had recognised it as an independent state.82 The ICJ also dierentiated
the question of the Advisory Opinion from that in the Reference re Secession of Que-
bec, where the Supreme Court of Canada was asked whether, under international
law, Quebec had the right to self-determine and unilaterally secede from Canada.83
The ICJ argued that it was not required:
[T]o take a position on whether international law conferred a positive entitlement on Ko-
sovo unilaterally to declare its independence or, a fortiori, on whether international law
generally confers an entitlement on entities situated within a State unilaterally to break
away from it.84
Nor did the Court consider it necessary to engage in debates regarding the extent of
the right of self-determination and the existence of any right of remedial secession,85
Reference re. Secession of Quebec [] Supreme Court Reports (Canada).

Ibid. .
Judge Koroma, Dissenting Opinion, Kosovo Opinion, para .
Ibid.
Ibid. By July , of the UNs countries had recognised Kosovos independ-
ence.
Reference re. Secession of Quebec, note above.
Discussed below.
because they concern the right to separate from a state.86 In the ICJs view, to answer
the question posed by the General Assembly, all it needed is to determine whether
or not the applicable international law prohibited the declaration of independence.87
Focusing on this limited remit, the ICJ considered the lawfulness of the Declaration
of Independence under general international law and Security Council Resolution
1244. The following two sub-sections assess the ICJs reasoning.
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 par-
ticipants in the proceedings arguing that a prohibition of unilateral declarations of
independence was implicit in the principle of territorial integrity. While acknowl-
edging the importance of the principle of territorial integrity, enshrined in Article
2(4) UN Charter and several non-binding international instruments,89 the ICJ main-
tained that the scope of this principle was conned to the sphere of inter-state rela-
tions. 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 prohibi-
tion against unilateral declarations of independence in international law.
b Security Council Resolution 1244

After outlining the general features of Security Council resolutions, such as adop-
tion by a single, collective body and its legally binding force on all Member states
irrespective of their role in their formulation, the ICJ focused on distinct features of
resolution 1244. Adopted to defuse the Kosovo crisis through ensuring an end to the
violence and repression in Kosovo and establishing an interim administration, reso-
lution 1244 possessed three distinct features. First, the resolution established an in-
ternational civil and security presence in Kosovo; more specically, it set up an inter-

Ibid.
Ibid. para .
See also, 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 ); The Final Act of the Conference on Security and
Cooperation in Europe, August , International Legal Materials (): .
Ibid.
national territorial administration in Kosovo, with the eect of superseding the legal
order in force at the time. Accordingly, resolution 1244 was an exceptional measure
established to address the crisis in the territory in 1999 through civil, political and
security presence.92 Secondly, designed for humanitarian purposes, the resolution
placed emphasis on the so-called four pillars relating to the governance of Kosovo,
namely, interim civil administration, humanitarian aairs, institution building and
reconstruction. This legal regime aimed to suspend Serbias exercise of its authority
based on continuing sovereignty over the territory of Kosovo and to support the de-
velopment of local institutions of self-government in Kosovo. Th irdly, the resolution
established only an interim regime, with no permanent institutional framework.
Based on these considerations, the ICJ concluded that Resolution 1244 aimed to es-
tablish a temporary, exceptional legal regime to stabilise Kosovo which superseded
the Serbian legal order, save to the extent that it was expressly preserved.93
Having established the object and purpose of Resolution 1244, the ICJ turned to
assess whether this instrument introduced a specic prohibition on the adoption of
a declaration of independence. In this regard, the ICJ observed that the resolution
aimed to create only an interim administration and was silent on the nal status
of Kosovo or any conditions for its achievement. Therefore, the instrument did not
preclude the adoption of the declaration of independence. Even the reference to po-
litical settlement94 in the resolution did not aect this conclusion, because the term
was ambiguous and could be subject to various interpretations. Consequently, the
Declaration of Independence did not violate Resolution 1244. The ICJ concluded that
Kosovos Declaration of Independence did not violate any applicable rule of interna-
tional law.
c Evaluating the Impact of the Advisory Opinion

Despite the signicance of the ICJs nding for the status of Kosovo, the scope of the
ICJs Advisory Opinion is excessively narrow. Understandably, the ICJ had to tread
on thin ice. Were the ICJ unequivocally support Kosovos statehood and treat its
Unilateral Declaration of Independence as an act of external self-determination of a
minority group, it could inadvertently encourage other secessionist movements, for
example, in Transdniestria in Moldova and Karabakh in Azerbaijan. However, if the
ICJ refused to legalise Kosovos secession, it would appear that 69 states, including
22 EU member states, prematurely recognised Kosovos independence and, hence,
interfered with the domestic aairs of Serbia. Therefore, even though the ICJs line
of reasoning is understandable in the light of political sensitivity of the matter, the
modication of the scope and meaning of the General Assemblys question95 is un-
fortunate.
Ibid. .
Ibid. .
SC Res. (), UN Doc. S/RES/ ( June ), para. (c).
For criticism see of Vice-President Tomka, Declaration, Kosovo Opinion, para. ; Judge
Simma, Declaration, ibid. para. ; Judge Yusuf, Separate Opinion, ibid. para. . See also,
In particular, by narrowing the scope of the question, the ICJ omitted the dis-
cussion of the principles established by the Badinter Commission. As discussed
in parts one and two of this chapter, the Badinter Commissions interpretation of
uti possidetis juris and self-determination prevented Kosovo from becoming inde-
pendent during the dissolution of the former Yugoslavia. Unlike the Court, several
states relied on these principles in their written submissions. For example, Romania,
Argentina and Cyprus argued that Kosovos Declaration of Independence contra-
vened the principle of inviolability of borders. In their view, pursuant to the Badinter
Commissions opinions, the boundaries of the federal States within the SFRY were
transformed into the international frontiers; these could be changed only by agree-
ment between the parties involved and without the use of force.96 Conversely, the
Netherlands and Denmark submitted that Kosovos Declaration of Independence
did respect the principle of uti possidetis juris as established by the Badinter Com-
mission in its Opinion No. 2, because its international frontiers followed existing
internal boundaries.97
The ICJ did not engage in these debates by drawing an articial distinction be-
tween declaring and eecting independence.98 The distinction is not convincing
because in practice declaration of independence is an essential legal and factual ele-
ment of the process of eecting statehood.99 Arguably, the real issue was whether
Kosovos remedial secession from Serbia was lawful.100 The right to remedial se-
cession is described as a last-ditch response to discrimination or oppression by a
central government.101 Pursuant to the doctrine of remedial secession, a group may
have a valid claim to territory if a) as a previous sovereign it reclaims territory which
was unjustly taken from it; b) it has been subjected to serious and persistent viola-
tion of human rights, including a states major violations of, or unilateral revocation
of autonomy arrangements.102 Even though no primary right to secede exists, point
Elena Cirkovic, An Analysis of the ICJ Advisory Opinion on Kosovos Unilateral Decla-
ration of Independence, German Law Journal : (): -, .
Written Statement of Romania, April , paras. and ; Written Statement of
Argentina, April , para. ; Written Statement of the Republic of Cyprus, April
, paras. and .
Written Statement of the Kingdom of the Netherlands, April , para. .; Written
Statement of Denmark, April , -.
Robert Muharremi, A Note on the ICJ Advisory Opinion on Kosovo, German Law
Journal : (): -, .
Ibid. . For further criticism, see Robert Howse and Ruti Teitel, Delphic Dictum:
How Has the ICJ Contributed to the Global Rule of Law by its Ruling on Kosovo? Ger-
man Law Journal : (): -, .
Thomas Burri, The Kosovo Opinion and Secession: The Sounds of Silence and Missing
Links, German Law Journal : (): -, .
Donald Horowitz, The Cracked Foundations of the Right to Secede, Journal of Democ-
racy : (): ; Hilpold, note above, .
Secession, Stanford Encyclopedia of Philosophy. Accessed September . http://
plato.stanford.edu/entries/secession.
b) could serve as a moral justication for Kosovos unilateral secession.103 Indeed,

as discussed in part two, the Serbian Constitutional amendments of 1988 deprived
Kosovo of its autonomous status; in addition, the government systematically limited
the provinces self-government and grossly violated human rights of individuals be-
longing to the Kosovo Albanian minority.104
Some limited support for the application of this doctrine may also be inferred
from the Reference re Secession of Quebec 105 and the UN Declaration on Friendly
Relations.106 In the Reference re Secession of Quebec, the Supreme Court of Canada
ruled that a sub-state unit may externally self-determine, if a group is denied any
meaningful exercise of its right to internal self-determination.107 Likewise, the UN
Declaration on Friendly Relations108 safeguards territorial integrity of those states
which respect equal rights and self-determination of peoples. Thus, this provision:
seems to implicitly suggest a link between territorial integrity and the existence of a gov-
ernment representing the whole people belonging to the territory without distinction as
to race, creed or colour in which that compliance is expected to result.109
Accordingly, where a state sub-unit is deprived of a possibility to self-determine

within a state, in exceptional situations it may legitimately secede from this state.
This view is supported by some commentators who argue that a states unilateral
abolition of autonomy arrangements, accompanied with persistent denial of politi-
cal and social equality and forced assimilation, may give a minority the right to se-
cede.110 To conclude, even though an abolition of autonomy by a state may not give an
automatic right to secede from a state, a minority may rely on denial of meaningful
exercise of autonomy which led to irreconcilable dierences between the majority
and the minority111 as a justication for secession.
Signicantly, Remedial Right Only theories provide a moral justication for secession.
Michel Seymour, Secession as a Remedial Right, Inquiry : (): .
Zimmermann, note above, .
Reference re. Secession of Quebec, note above, .
See note above.
See note above.
Gaetano Pentassuglia, State Sovereignty, Minorities and Self-Determination: A Com-
prehensive Legal View, International Journal on Minority and Group Rights ():
.
Thomas Franck, Post-Modern Tribalism and the Right to Secession, in Peoples and
Minorities in International Law, eds. C. Brolmann, R. Lefeber and M. Zieck (Dordrecht:
Martinus Nijho, ), -; Zimmermann, note above, ; Geo Gilbert, Au-
tonomy and Minority Groups: A Right in International Law? Cornell International
Law Journal (): -; Jane Wright, Minority Groups, Autonomy, and Self-
Determination, Oxford Journal of Legal Studies (): .
Colin Warbrick, Kosovo: the Declaration of Independence, International and Com-
parative Law Quarterly (): .
The argument that Kosovo exercised the right to remedial secession has some
weaknesses, however. For example, it is unlikely for either a domestic case or, as
Shaw argued, an ambiguous subordinate clause in the non-legally binding Declara-
tion on Friendly Relations to prevail over the territorial integrity of states, a core
principle of international law.112 Thus, despite the fact that the government com-
mitted grave violations of Kosovo Albanians human rights, the international com-
munity endorsed the territorial integrity of the FRY.113 Furthermore, due to the fact
that under pressure from the international community Serbia restored Kosovos au-
tonomy, the Declaration of Independence in 2008 could hardly be regarded as, a
last resort for preventing oppression.114 In this regard, some commentators argued
that Kosovos right to remedial secession was the result of years of oppression, i.e.,
exercised with a signicant delay.115 Even though this argument may be convincing
in the light of Kosovos history, basing remedial secession on historical abuse which
no longer exists, leaves it unclear how far in history could the claim of abuse go?116 In
its written statement, the Netherlands suggested that the time factor did not under-
mine the right of Kosovo to external self-determination, because it has been used,
to satisfy the procedural condition for the exercise of the right to external self-de-
termination, namely the exhaustion of all eective remedies to achieve a settlement
on the status of Kosovo.117 Therefore, a delayed exercise of remedial secession could
be possible, if the time was spent on negotiations or recourse to relevant interna-
tional organisations.
Regrettably, the ICJ refused to discuss remedial secession, possibly because there
is little state practice supporting this doctrine, with the notable exception of the
creation of Bangladesh. Nor did the Court consider two signicant factors relevant
to the assessment of the success of secession: state conduct and recognition. These
criteria were conrmed by the Supreme Court of Canada in Re Secession of Quebec,
where it noted that although there is no right under the Canadian Constitution or
international law to unilateral secession:
the possibility of an unconstitutional declaration of secession leading to a de facto se-

cession is not ruled out. The ultimate success of such a secession would be dependent on
recognition [emphasis added] 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 [emphasis added], in determining whether to grant or withhold
recognition.118
Shaw, note above, .

Pentassuglia, note above, .
Vidmar, note above, .
Ibid. .
Goodwin, note above, .
The Netherlands Written Statement, note above, para. ..
Thus, one consideration in assessing Kosovos secession could be the conduct of the
state in ensuring meaningful exercise of autonomy, including respect for the groups
human and minority rights. Based on such assessment, states granting recognition
to a new entity could take into consideration the legality and legitimacy of secession.
Where state conduct is concerned, as the above discussion in part two high-
lighted, the former Yugoslavia had violently abolished Kosovos autonomy. Further-
more, the state grossly violated fundamental rights of Kosovo Albanians. Although
the restoration of autonomy seven years after Serbia agreed to grant autonomy to
Kosovo was an important development, the Serbian Constitution contained provi-
sions which could signicantly curtail the enjoyment of these guarantees in practice.
This view was conrmed by theEuropean Commission for Democracy through Law
(Venice Commission) in its Opinion on the Constitution of Serbia.119 Thus, Article
12 in Part I on Constitutional principles stipulated provincial autonomy and local
self-government. However, it did so in an ambiguous way:
[O]n the one hand, in the rst paragraph it provide[d] that state power is limited by the
right of citizens to provincial autonomy and local self-government, yet on the other hand
it state[d] that the right of citizens to provincial autonomy and local self-government shall
be subject to supervision of constitutionality and legality. Hence it is clear that ordinary
law can restrict the autonomy of the Provinces.120
Even though these limitations did not amount to grave violation of human rights,
taking into consideration that Kosovos autonomy had been already revoked, as well
as irreconcilable dierences between the majority and the minority, it could be pos-
sible to argue that in restoring Kosovos autonomy Serbia did not act in good faith.
Therefore, Kosovos unilateral act of external self-determination could still be re-
garded as a right of a people who were not allowed a meaningful self-government
within its state. As mentioned above, states recognising Kosovos independence
could take this state conduct into account.
European Commission for Democracy through Law (Venice Commission), Opinion

on the Constitution of Serbia, Opinion No. /, CDL-AD () , March
.
Ibid. para. . The Venice Commission also pointed out that under Part VII of the Con-
stitution, substantial autonomy of Kosovo is not guaranteed at the constitutional level,
because virtually every important aspect of this autonomy was delegated to the legisla-
ture, which could eectively restrict the autonomy of Kosovo (ibid. para .) For example,
Article () states that [t]he territory of autonomous provinces and the terms under
which borders between autonomous provinces may be altered shall be regulated by the
law (Emphasis added). Accordingly, the Serbian legislature could alter the borders of
the autonomous areas. Furthermore, Article () declared that [a]utonomous prov-
inces shall, in accordance with the law, regulate matters of provincial interest in the
following elds (Emphasis added). Hence, again, the Constitution authorised the
legislature to alter the extent of self-government. Consequently, the latest Constitution
of Serbia contained numerous provisions capable of limiting the substantial autonomy
of Kosovo.
Furthermore, two other considerations are relevant to state recognition: legiti-

macy and legality of secession. As to the legitimacy of Kosovos independence, the
UN Security Council Resolution 1244 which established territorial administration
of this sub-state unit insisted on substantial autonomy for Kosovo, but did not ex-
plicitly endorse future independence. However, once Kosovo declared independence,
the Security Council did not call on states for collective non-recognition. Admit-
tedly, the Security Council was and still is deeply divided,121 which leaves the ques-
tion of legitimacy wide open.122
Where legality of Kosovos independence is concerned, some middle ground
could be struck in balancing the principle of self-determination and territorial in-
tegrity. Quane suggested that at the level of general principle, even though territorial
integrity of states will always receive priority, it: should not automatically and in
all cases trump the self-determination principle. It is submitted that where certain
substantive and procedural criteria are met, self-determination should take priority
over the territorial integrity principle.123 Where substantive requirement are con-
cerned, a gross violation of human rights appears to be a factor which may weaken
a states claims over territory; as to procedural criteria, negotiations in good faith,
close involvement of the international community and a realistic time-scale may be
among relevant considerations.124 So, one solution for resolving the question of the
legality of Kosovos external self-determination was to argue that because it satised
substantive and procedural requirements, it was entitled to secede. Such interpreta-
tion, strongly advocated by the Netherlands and Germany,125 could open a way to
stronger protection of minorities.
Accordingly, were the ICJ to adopt a broader approach in assessing Kosovos
Declaration of Independence, it could clarify concepts, which could be central in
protecting some minority groups, such as remedial secession, external self-deter-
mination of minorities and state recognition. In his separate opinion, Judge Yusuf
This deep division within international community was also evident in the decision of
the UN General Assembly to refer the matter of legality of Kosovos secession to the
ICJ. Thus, States voted for Serbias initiative to ask for an advisory opinion of the ICJ;
countries abstained, and only voted against. Backing Request by Serbia, General
Assembly Decides to Seek International Court of Justice Ruling on Legality of Kosovos
Independence, October . Accessed October . http://www.un.org.ezproxye.
bham.ac.uk/News/Press/docs//ga.doc.htm. See also, Security Council Press
Release, UN SCOR, th meeting, UN Doc. S/, August . Accessed
October . http://www.un.org/News/Press/docs//sc.doc.htm.
In particular, some commentators argued that, because Kosovo unilaterally changed
the UN status regime, the obligation of non-recognition existed under Resolution .
For discussion see Vidmar, note above, ; Hilpold, note above, .
Helen Quane, Self-determination and Minority Protection after Kosovo, The Kosovo
Precedent: Implications for Statehood, Self-determination and Minority Rights, Con-
ference at Lancaster University, March , .
Ibid.
The Netherlands Written Statement, note above, paras. .-.; Written Statement
of the Federal Republic of Germany, April , .
rightly criticised the ICJ for its failure to, dene the scope and normative content
of the post-colonial right of self-determination, thereby contributing, inter alia, to
the prevention of the misuse of this important right by groups promoting ethnic and
tribal divisions within existing States.126 The Judge maintained that the ICJs assess-
ment of the existence of a minority groups entitlement to self-determine could have
brought clarity to the scope and legal content of this right. Overall, it is regrettable
that the ICJ missed a, unique opportunity to assess, in a specic and concrete situa-
tion, the legal conditions to be met for such a right of self-determination to material-
ize and give legitimacy to a claim of separation.127
5 Conclusion: the ICJs Advisory Opinion on Kosovos Independence v

Badinter Commissions Opinions
We now return to the initial question posed earlier in this chapter: does the ICJs
advisory opinion on Kosovos unilateral act of independence aect the validity of
the Badinter principles, which explicitly prohibited secession of sub-state units and
reserved the right of self-determination only to constituent republics of the Former
Yugoslavia?
The analysis of the Badinter Commissions opinions in part one of the chapter
demonstrated that in developing the legal principles, the Commission heavily relied
on the political decisions of the EC. The Badinter Commissions reading of the prin-
ciples of uti possidetis juris and self-determination, in theory, aimed to ensure peace-
ful dissolution of the former Yugoslavia, even though in practice the exactly opposite
result was achieved. In light of discussion in part two of this chapter, it appears
that Kosovos Unilateral Declaration of Independence contradicted two fundamen-
tal principles established by the Badinter Commission: rst, contrary to Opinions
Nos. 2 and 3, without Serbias consent, Kosovo unilaterally changed international
borders armed by the Badinter Commission (uti possidetis juris). Second, Kosovo
invoked the principle of external self-determination, which the Badinter Commis-
sion limited to choice of identity and nationality. Against the background of these
principles, the unilateral secession of Kosovo could well be regarded as illegal. How-
ever, the analysis of the ICJs advisory opinion in part three of the chapter illustrated
that Kosovos Declaration of Independence did not violate any applicable rule of in-
ternational law. Does this nding then invalidate the principles established by the
Badinter Commission?
The answer to this question should be in negative, given that the ICJ has exces-
sively narrowed the question of the advisory opinion. It excluded from the scope of
the question the key issues pertinent to the assessment of Kosovos independence,
such as the scope and content of the post-colonial self-determination, the right to
remedial secession and the legal eects of state recognition.
Overall, it is regrettable that the ICJs advisory opinion on Kosovo did not bring
clarity to the matter and open a new page in the protection of minority rights, includ-
Judge Yusuf, Separate Opinion, note above, para. .

Ibid. para. .
ing their right to self-determination. In assessing Kosovos secession, the ICJ could
usefully focus on state conduct, legitimacy and legality of secession. Where state
conduct was concerned, the abolition of autonomy and gross violation of human
rights by the state could support the claim that Kosovo exercised delayed remedial
secession. Even the restoration of the provinces autonomous status did not bridge
this gap, because Serbias latest constitution contained some provisions capable of
limiting Kosovos autonomy in practice. As to legitimacy of Kosovos independence,
it could be based on Resolution 1244, while its legality could be judged on the basis
of substantive and procedural requirements. These criteria could prevent secession-
ist trends in other states, conrm Kosovos statehood, and crystallise the norms of
minority protection, including the right to internal (and in exceptional situations
external) self-determination.
In conclusion, even though conned to the framework of the FRY, the principles
established by the Badinter Commission have had some inuence outside of the
former Yugoslavia. Regrettably, the ICJs advisory opinion did not have signicant
impact on the Badinter Commissions restrictive reading of the principles uti pos-
sidetis juris and self-determination. Although retrospective re-interpretation of the
Badinter Commissions opinions is unlikely to inuence state practice, critical ap-
plication of these principles is highly desirable.
Chapter 10 The Kosovo Question and Uti Possidetis:
The Potential for a Negotiated Settlement
STEPHEN ALLEN and EDWARD GUNTRIP*
1 Introduction
The issue of Kosovos status in international law remains an enduring problem for
the international community. Its mixed reaction to Kosovos 2008 Declaration of
Independence and tensions within the doctrines of self-determination, recognition
and statehood appear to have rendered the Kosovo Question intractable. In cases of
secession the consent (or at least the acquiescence) of the parent State is invariably
required for the edgling entity to become a full participant in the inter-State system
(irrespective of satisfying the criteria for the creation of States in international law).1
Serbia shows no signs of recognising Kosovo and it is highly unlikely that Russia will
allow Kosovo to become a UN member, which is often seen as the birth certicate
of new States. It is unlikely that the impasse will be resolved by the ICJs Advisory
Opinion.2 In these circumstances, another means of breaking the deadlock must be
found otherwise this state of aairs will have a negative impact on the development
of both countries and will ensure that regional peace and security remains fragile.3
This chapter asks whether there are principles of international law that are not
currently being considered that could assist with the resolution of the ongoing dis-
pute between Kosovo and Serbia over Kosovos claim to statehood. To this end, it
examines the Kosovo Question through the lens of the ongoing ethnic tensions
* The authors would like to thank the late Professor Kaiyan Homi Kaikobad for his assist-
ance in the preparation of this chapter and Dr. James Summers for his comments on
draft versions of the chapter. All errors remain those of the authors.
See James Crawford, State Practice and International Law in relation to Secession,
British Yearbook of International Law (): .
See International Court of Justice: Accordance with International Law of the Unilat-
eral Declaration of Independence by the Provisional Institutions of Self-Government
of Kosovo (Advisory Opinion). Accessed August . http://www.icj-cij.org/docket/
index.php?p=&p=&code=kos&case=&k=.
It is apparent that the successor States are beginning to develop closer commercial and
social ties, see Entering the Yugosphere, The Economist, August , .
between the Kosovo Albanians and the Kosovo Serbs in those areas of Northern
Kosovo where the latter group predominates. These tensions have resulted in a
governance problem for the Pristina administration which could provide a context
for discussions between the parties. Against this background, this essay considers
whether the principle of uti possidetis could oer a legal criterion to inform a process
of negotiation to break the current deadlock, which might contribute to the resolu-
tion of the Kosovo Question.
To address this possibility, this essay initially sets out the governance problem in
Northern Kosovo by undertaking a factual examination of some of the diculties
experienced in this region and how these issues might permit discussions between
Kosovo and Serbia. Consideration is then given to the principle of uti possidetis, in-
cluding its previous application in the dissolution of Yugoslavia. The essay then turns
more specically to the position of Kosovo during the time of the dissolution of
Yugoslavia and examines why uti possidetis was not considered in relation to Kosovo
at this time. It then is argued that, in the current circumstances, the presumptive na-
ture of uti possidetis could provide a starting point for Kosovo and Serbia to resolve
their dierences. To determine whether this is feasible, the application of uti possi-
detis in various contexts is discussed to see if the principles traditional presumptive
nature has been retained, or whether practice has rendered it to be prescriptive in
nature. The essay then sets out the principles that could be utilised in the application
of uti possidetis to the Kosovo/Serbia boundary before concluding as to the role that
uti possidetis might play in the resolution of this long standing problem.
2 The Governance Problem in Northern Kosovo

To determine the viability of using alternative principles of international law (such
as uti possidetis) to resolve the ongoing dispute between Kosovo and Serbia regard-
ing Kosovos claim to statehood, it is rst necessary to identify where there may be
scope for a form of negotiated settlement. The diculties experienced by the Kosovo
administration in governing some of the Northern municipalities of Kosovo, partic-
ularly Zubin Potok, Mitrovica, Leposaviq and Zvean, may provide this opportunity.
In many sectors in Northern Kosovo, assistance from KFOR, UNMIK and EU-
LEX has been required to re-establish and maintain functions that are essential to
civil society. Many of the diculties encountered stem from the majority Kosovo
Serb populations in these municipalities who are resistant to the Kosovo adminis-
tration and are instead supporting Serbias calls to prevent the recognition of Kosovo
as an independent State. However, the Kosovo administration has also experienced
more general diculties establishing basic services required in Northern Kosovo
and, in addition, has to deal with the consequences of recent ethnically driven con-
ict. This section of the essay will outline some of the specic issues that the Kosovo
administration has had to address in Northern Kosovo.
The resistance of Kosovo Serbs to the Kosovo administrations claims of state-
hood has been manifested in several forms, including political resistance to the
Kosovo administrations attempts at decentralisation. In June 2006, the municipali-
ties of Zubin Potok, Leposaviq and Zvean, ceased to co-operate with the Kosovo
Chapter 10, S. Allen and E. Guntrip The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement 305
Provisional Institutions of Self-Government.4 Consequently, these municipalities

are governed by the Serbian framework5 and have very few links with Pristina.6 As a
result, UNMIK has to serve as a means for communication between Kosovo Serbs
and Pristina.7 Additionally, UNMIK has functioned as a go-between for Kosovo
Serb municipal leaders and the Kosovo Albanian community.8 All communities
permit UNMIK to facilitate these communications,9 but the refusal of the Kosovo
Serb population to participate in Kosovos political process is a deliberate attempt to
derail the recognition of Kosovo, and its constituent authorities and institutions.10
a Political Processes
The lack of co-operation by Kosovo Serbs in the political process has meant that
Kosovo has not been able to conduct eective elections in the municipalities of Zu-
bin Potok, Mitrovica, Leposaviq and Zvean. The predominant Kosovo Serb popula-
tion in these municipalities boycotted the Kosovo organised November 2007 munic-
ipal elections;11 preferring instead to participate in the Serbian organised municipal
elections in May 2008.12 The result of the alternative elections was the establishment
of municipal bodies in accordance with the Serbian legislative framework.13 In some
instances, where small populations of Kosovo Albanians did vote in the Kosovo mu-
nicipal elections, parallel Kosovo-run municipal structures were established under
OSCE Mission in Kosovo, Pro le of Zubin Potok, OSCE. Accessed March . http://
www.osce.org/kosovo/.html; OSCE Mission in Kosovo, Pro le of Leposaviq,
OSCE. Accessed March . http://www.osce.org/kosovo/.html; and OSCE
Mission in Kosovo, Pro le of Zvean, OSCE. Accessed March . http://www.
osce.org/kosovo/.html.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; ibid. Pro le of Zvean.
Secretary-General of the United Nations, Report of the Secretary-General on the Unit-
ed Nations Interim Administration Mission in Kosovo, September , UN Doc.
S// ( September ), .
Secretary-General of the United Nations, Report of the Secretary-General on the
United Nations Interim Administration Mission in Kosovo, January , UN Doc.
S// ( January ), .
Ibid.
United Nations Interim Administration Mission in Kosovo, June , UN Doc.
S// ( June ), ; Secretary-General of the United Nations, Report of the
Secretary-General on the United Nations Interim Administration Mission in Kosovo,
March , UN Doc. S// ( March ), .
See note above, .
See note above, Pro le of Zubin Potok; note above, Pro le of Leposaviq; note
above, Pro le of Zvean; and OSCE Mission in Kosovo, Pro le of Mitrovica, OSCE.
Accessed March . http://www.osce.org/kosovo/.html.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; ibid. Pro le of Zvean; and
ibid. Pro le of Mitrovica.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Zvean; and ibid. Pro le of Mitrovica.
the Kosovo legislative framework. This was most pronounced in Mitrovica where
Serbian run municipal bodies operate north of the Ibar River and Kosovo run mu-
nicipal bodies operate to the South of the Ibar River,14 representing the geographical
division of the ethnic groups. So as to try and unify these parallel bodies, UNMIK
exercised its administrative authority over Northern Mitrovica, eectively prevent-
ing the Kosovo-run municipal body from having any jurisdiction in this region.15
The government of Kosovo conducted further municipal elections on 15 Novem-
ber 2009.16 Prior to the elections, Belgrade refuted the validity of the Kosovo run
elections based on the lack of a conducive environment for Kosovo Serbs to vote and
the lack of support for Kosovo run elections in the mandate set out in UN Security
Council Resolution 1244(1999).17 Calls were made by Serbia for Kosovo Serbs to boy-
cott the election so as to not give grounds for the recognition of Kosovos indepen-
dence from Serbia.18 Kosovo Serbs in northern Mitrovica, Zubin Potok, Leposaviq
and Zvean did not participate in the Kosovo run elections.19
Serbia organised by-elections in Leposaviq on 29 November 200920 following the
disbanding of the Serbian run municipal assembly on 9 July 2009. This was con-
sidered necessary due to elected members changing political aliation from the
Serbian Radical Party to the newly formed Serbian Progressive Party after the as-
semblys formation.21 The Kosovo administration does not recognise the results of
these elections.22
The Kosovo administration intends to create two new municipalities in North-
ern Kosovo, Partesh and North Mitrovica, with elections scheduled in Partesh for
June 2010.23 Belgrade organised elections in late May in Northern Mitrovica which
resulted in clashes between Kosovo Albanians and Kosovo Serbs.24
Ibid. Pro le of Mitrovica.

Ibid. Pro le of Mitrovica.
See note above, .
Ibid. .
Ibid.
Ibid. and .
Ibid. .
See note above, Prole of Leposaviq.
See note above, .
United Nations Interim Administration Mission in Kosovo, April , UN Doc.
S// ( April ), .
Ljubica Vujadinovic, Kosovo: Clashes over Belgrade-Run Elections. Accessed June
. http://www.allvoices.com/contributed-news/-kosovo-clashes-over-belgra
derun-elections.
b Education
The result of concurrent political processes in Northern Kosovo has meant that
Kosovo and Serbian political institutions operate in parallel. The creation of par-
allel institutions is also mirrored in other sectors, such as education.25 In March
2006, the Serbian Governments Coordination Centre for Kosovo directed teachers
to renounce Kosovo government salaries.26 This directive resulted in schools being
aligned along ethnic groupings. Kosovo Serb schools with Kosovo Serb pupils follow
the Kosovo Serb curriculum according to Serbian law27 and teachers are paid by the
Serbian Ministry of Education.28 Kosovo Albanian schools with Kosovo Albanian
students (such as in Kosovo Albanian villages in Zubin Potok) follow the Kosovo
curriculum in accordance with Kosovo law and sta are paid by the Kosovo admin-
istration.29
In the tertiary education system, Leposaviq and Mitrovica both house faculties of
the university in Mitrovica30 which follows a Serbian curriculum.31 Leposaviq houses
two faculties (pedagogical and physical) and an economics college.32 A further four
faculties of the university (technology, mining, metallurgy and geology) are located
in southern Mitrovica with the remaining 12 faculties being located in northern Mi-
trovica.33 The use of the Serbian curriculum in Kosovo undermines the eectiveness
of the Pristina administration in relation to the tertiary education sector.
c Health Care
The establishment of parallel systems has also had an impact on the health care
sector. Generally, health care systems in Kosovo are considered to be of a poor stan-
dard.34 This is in part due to a lack of infrastructure and medical equipment and
supplies.35 The situation in Northern Kosovo evidences these problems36 which are
above, Pro le of Zvean; note above, Pro le of Mitrovica; and Commission of
the European Communities, Kosovo under UNSCR / Progress Report,
October , SEC () , .
Ibid. Pro le of Leposaviq; and ibid. Pro le of Zvean.
See note above, Kosovo under UNSCR / Progress Report, .
above, Pro le of Zvean; and note above, Prole of Mitrovica.
Ibid. Pro le of Zubin Potok.
See note , Pro le of Leposaviq; and note above, Prole of Mitrovica.
Ibid. Pro le of Leposaviq.
Ibid.
See note above, Pro le of Mitrovica.
See note above, Kosovo Under UNSCR / Progress Report, .
Ibid.
See note above, Pro le of Zubin Potok; and note above, Pro le of Leposaviq.
arguably exacerbated by the operation of parallel health care systems. This is dem-
onstrated by the situation in Mitrovica.
The health centre in Southern Mitrovica provides limited health services and acts
as a hub for other health centres in the region including health care units in other
Northern Kosovo municipalities.37 In Northern Mitrovica, Serbian authorities run
an independent hospital and health centre.38 This hospital acts as the main health
centre for the Kosovo Serb community throughout Kosovo.39 Ethnic tensions mean
that Kosovo Serbs resident in Zubin Potok, who attend the hospital in Northern
Mitrovica, use an alternative route to access the hospital so as to avoid travelling
through Kosovo Albanian villages.40 This approach to health care curtails its eec-
tiveness given the limited resources available.
d Police, Justice and Customs

Other public services are also being undermined by the uncertainty regarding Koso-
vos status as an independent State. Police services, the justice system and customs
operations have been aected and the justice system and customs operations are
only managing to function at present with support from UNMIK and EULEX. It is
acknowledged that in any post conict situation, services in support of civil service
take time to become fully operational and self supporting, however, in many cases
in Kosovo, it is only based on international support that these services have com-
menced their re-establishment and, at this stage, it does not appear that they will be
self supporting in the short term. The current diculties in each of these services
will now be considered, commencing with police services where ethnic tensions
have resulted in temporary reductions in the level of policing.
Following Kosovos Declaration of Independence in February 2008, Kosovo Serb
police ocers stopped reporting for duty.41 Kosovo Serb police that were not report-
ing for duty were informed that they would not be paid from 15 May 2009 and that
they had to return to work by 30 June 2009.42 If they failed to return to work, they
would lose their posts and their positions would be re-advertised.43 Given this ulti-
matum, of the 325 Kosovo Serb police ocers who did not report for duty following
the Declaration of Independence, 317 returned to work by the 30 June deadline44 and
operated under their usual chain of command.45
See note above, Pro le of Mitrovica.

Ibid.
Ibid.
See note above, Prole of Zubin Potok.
See note above, June Report, .
Ibid.
Ibid.
Ibid. and .
In January 2009, Kosovo police created a unit comprised of twenty-ve ocers

from dierent ethnic groups.46 This unit operates in Northern Mitrovica and was
monitored by EULEX which found that the unit had been well received47 and that
crime rates had fallen.48 However, in Northern Mitrovica, four police stations still do
not report directly to Pristina.49 This is due to these stations being primarily staed
by Kosovo Serbs.50 Kosovo Albanian ocers based at these stations mostly work in
the Kosovo Albanian villages.51
The justice sector also suered major setbacks which are now beginning to be
rectied. Following Kosovos Declaration of Independence, judicial institutions in
the Northern Kosovo municipalities ceased operating.52 Courts formerly based in
Mitrovica now have limited functions in the Vushtrri municipal court.53 A Serbian
parallel court system exists but does not operate.54
EULEX has been heavily involved in re-establishing the judicial system in North-
ern Kosovo and has begun the process of creating an inventory of les registered
in the Northern Mitrovica courthouse.55 At the district court level, an inventory of
5000 prosecution les has been created.56 Urgent cases have been forwarded to the
Kosovo judiciary57 and are to be dealt with by mixed panels of Kosovo Albanian and
Kosovo Serb judges and prosecutors.58
The restoration of the court system is being hampered by the political stances
being taken by Kosovo, Serbia and EULEX.59 Kosovo is using the backlog of cases
to generate pressure for the re-integration of Northern Kosovo and Serbia will only
accept Serbian appointed judges in the Courts.60 Although both sides have agreed
to the appointment of international judges, sucient numbers have not yet been
deployed by EULEX.61
Ibid. See note above, June Report, .

Ibid. June Report, .
Ibid. and International Crisis Group The Rule of Law in Independent Kosovo, Crisis
Group Europe Report No. ( May ): .
Ibid. The Rule of Law in Independent Kosovo.
Ibid.
above, Pro le of Zvean; note above, Prole of Mitrovica; and ibid. .
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; ibid. Pro le of Zvean; ibid.
Pro le of Mitrovica; and ibid. The Rule of Law in Independent Kosovo.
Ibid. Pro le of Zubin Potok; ibid. Pro le of Leposaviq; and ibid. Pro le of Mitrovica.
See note above, .
See note above, and .
See note above, ; note above, .
Ibid. January Report, .
See note above, .
Ibid.
Ibid.
Customs operations (and associated organised crime related to smuggling) have

also proved to be dicult for Kosovo to manage eectively independently of inter-
national support. This is particularly the case for Gates 1 and 31 which are the border
crossing points on the Kosovo/Serbia border.62 Gate 1 is the border crossing point
between Kosovo and Serbia in the municipality of Leposavic and Gate 31 is the bor-
der crossing point between Kosovo and Serbia in the municipality of Zubin Potok.63
In December 2008, EULEX assumed responsibility for customs within Kosovo.64
EULEX initially undertook a monitoring role at Gates 1 and 31 to evaluate the situ-
ation and logged information regarding incoming commercial vehicles and their
loads.65 This phase was then followed by a 24 hour a day, 7 days a week presence at
Gates 1 and 31,66 which was designed to commence the process of re-establishing
full customs control at these gates.67 Details gathered were distributed to Kosovo
and Serbian customs authorities.68 By May 2009, customs was strengthened by mea-
sures such as copying commercial documents and identication cards of drivers
with copies given to Kosovo Customs and the Serbian Customs and Tax depart-
ments.69 Based on the training provided by EULEX, Kosovo Customs seized items
such as jewellery and unlicensed pharmaceuticals.70 The practice of sharing docu-
ments with Customs bodies in both Kosovo and Serbia has resulted in the investi-
gation of several cases involving criminality71 and there has been a large reduction
in the amount of fuel being smuggled across the Kosovo/Serbia border.72 At times,
Kosovo Serb institutions in Northern Kosovo have been reluctant to deal with EU-
LEX and have protested regarding the collection of data.73 Despite this, by late 2009,
the practice of copying commercial documents has also been extended to commer-
cial trains entering Kosovo which has enabled further seizures and criminality to be
detected.74 In February 2010, EULEX additionally began checking documentation of
United Nations Interim Administration Mission in Kosovo, Press Brieng Notes, UN-
MIK, February . Accessed February ). http://ocha-gwapps.unog.ch/rw/
RWFiles.nsf/FilesByRWDocUnidFilename/EGUA-CSY-full_report.pdf/File/
full_report.pdf.
Foreign and Commonwealth Oce, Travel Advice Kosovo, FCO. Accessed Feb-
ruary . http://www.fco.gov.uk/en/travel-and-living-abroad/travel-advice-by-coun-
try/europe/kosovo.
See note above, Kosovo Under UNSCR / Progress Report, .
See note above, March Report, .
Ibid.
Ibid.
Ibid.
See note above, .
Ibid. and note above, .
Ibid. September Report.
See note above, March Report, .
See note above, .
people entering the checkpoints.75 Infrastructure at customs Gates 1 and 31 has been
re-established.76
Despite the progress made, in late 2009, Kosovos borders were not fully secured,
with the north being identied as a particular problem.77 The lack of customs opera-
tions in this area has been identied as hindering the ght against organised crime.78
Restoration of full customs operations in the Northern Kosovo municipalities is sub-
ject to agreement between Kosovo and Serbia regarding the collection of customs
and the distribution of revenues.79
e Basic Utilities
In addition to these social services, basic utilities such as electricity have also proved
dicult to establish and run protably, particularly so in the municipalities of Zubin
Potok and Leposaviq.80 The electricity supply is not constantly maintained81 due to a
series of disconnections by the Kosovo Energy Corporation on the grounds of non-
payment of bills.82
The majority Kosovo Serb population protested against the disconnections on
the basis that they were discriminatory on ethnic grounds.83 A study undertaken by
the OSCE did not nd any grounds to support the claim of ethnic discrimination.84
Payment arrangements in the form of collective agreements were oered to Kosovo
Serbs85 and electricity supplies were reconnected for those villages that agreed.86 The
collective agreements require regular payments for electricity based on consump-
tion and freeze accumulated debts owed to the Kosovo Energy Corporation.87
The Kosovo Energy Corporation oered payment arrangements to many villages,
who reluctantly signed in order to have an electricity supply.88 However, further dis-
connections were made by the Kosovo Energy Corporation in August 2009 follow-
See note above, .

See note above, ; and note above, .
See note above, Kosovo under UNSCR / Progress Report, and .
Ibid. .
See note above, ; note above, ; and note above, .
See note above, Prole of Zubin Potok; and note above, Pro le of Leposaviq.
Ibid.
Ibid. .
See note above, .
ing the non-payment of bills.89 Reconnection of the electricity supply occurred after
residents signed contracts and made lump sum payments.90
The Kosovo Energy Corporation network continues to disconnect the electricity
supply to the northern Kosovo municipalities.91 OSCE and UNMIK have been at-
tempting to resolve the dispute between the Kosovo Energy Corporation and many
of the residents in northern Kosovo.92 Belgrade has advised Kosovo Serbs to enter
into contracts with the Kosovo Energy Corporation for the supply of electricity.93
However, some Kosovo Serbs refuse to enter into agreements with the Kosovo En-
ergy Corporation on the basis that it would imply recognition of Kosovos indepen-
dence.94 The Electric Power Industry of Serbia provided electricity during shortages
of power,95 however, this contributed to instability in the region due to the potential
implications for Kosovos independence.96 Consultations are continuing in an at-
tempt to resolve this matter.97 In the meantime, the Electric Power Industry of Ser-
bia has taken over electricity supplies in Northern Kosovo and is issuing bills to its
customers.98
f Basic Infrastructure
In addition to a lack of utilities, basic infrastructure in northern Kosovo is generally
in poor condition.99 Some larger roads, such as the Adriatic Highway are in good
condition, but local roads are in need of repair.100 Some progress is being made in
relation to the road transport system, however, the internal management within the
Department of Road Infrastructure needs to be addressed together with its capac-
ity101 before further progress can be made.
Ibid.
Ibid.
See note above, .
See note above, .
Ibid. and note above, June Report, .
Ibid. June Report.
In September , Leposaviqs electricity supply was provided by Serbia and in Zubin
Potok Serbia reinforces the power supply. See note above, Pro le of Zubin Potok; and
note above, Pro le of Leposaviq).
See note above, .
Ibid. and note above, .
Ibid. April Report.
above, Pro le of Zvean.
Ibid. Pro le of Zubin Potok.
g Identity Documentation
The Kosovo administration has attempted to implement policies to demonstrate its
ability to govern. For example, Kosovo authorities do not recognise birth certicates
issued by Serbia prior to June 1999.102 Consequently, Kosovo Serbs are applying for
Kosovo identity documents and drivers licences103 to facilitate their daily lives in
Kosovo.104 This reaction by Kosovo Serbs could also be in response to the Kosovo ad-
ministrations policy of seizing drivers licences and vehicle registration documents
issued for Kosovo by the Serbian authorities after 1999.105 This practice was ceased
in April 2009 (after two weeks)106 and UNMIK and EULEX are assisting with the
resolution of disputes regarding the conscations.107
h Ethnic Conflict
Underlying the diculties outlined above, residual ethnic tensions remain following
the recent ethnically driven conict in the region. Although this is now exhibited
in low level bursts of violence, in some cases, it is only through the intervention of
UNMIK, KFOR and EULEX that disputes are resolved. Several incidents of violence
have taken place in northern Kosovo municipalities especially against Kosovo Al-
banians returning to repair their homes.108 In November 2008, UNMIK and the
Kosovo Police had to intervene to prevent conict when a Kosovo Albanian man
returned to Northern Mitrovica to reconstruct his home that had been damaged in
the war.109 Although they managed to restore order on this occasion, it was not an
isolated instance.
Similar incidents took place during spring 2009 when Kosovo Serbs commenced
daily protests in response to further repair and construction works undertaken by
Kosovo Albanians.110 Kosovo Police, EULEX and KFOR had to intervene, in some
instances, requiring the use of tear gas to disperse the demonstrations.111 During
this time period, EULEX and KFOR were red upon by Kosovo Serbs.112 Interven-
tion by UNMIK led to a compromise by which Kosovo Serbs permitted ve Kosovo
See note above, .

Ibid.
Ibid. .
Ibid.
See note above, .
Ibid. ; note above, March Report, ; and note above, June Report, .
Ibid. March Report, .
See note above, .
Ibid.
Albanian homes to be rebuilt in return for Kosovo Serbs being allowed to construct
buildings on recently acquired land.113
Despite the brokered agreement, tensions still existed and in August 2009, Koso-
vo Serbs threw stones at Kosovo Albanian construction workers building in an area
where it had previously been agreed that construction could commence.114 Later
in the month, when Kosovo Albanians began to clear an area for work in the mu-
nicipality of Zvean, without having informed UNMIK or the Zvean municipality
itself, confrontations resulted and both Kosovo Serbs and Kosovo Albanians were
injured.115
i Presevo Valley (Serbia)

In addition to the problems in Kosovo, there has also been recent disquiet in the
Serbian municipality of Presevo Valley which has a majority ethnic Albanian popu-
lation. Presevo is located in Southern Serbia bordering the Former Yugoslav Repub-
lic of Macedonia (Macedonia) and Kosovo.116 The municipality has been relatively
peaceful following the adoption of the Covic Plan (drafted by Neboja ovi, Deputy
Prime Minister of Serbia in 2001) which aimed to integrate ethnic Albanians into
civil society in the region.117 However, the doubt regarding Kosovos status as an in-
dependent state has undermined the stability of the region.
In February 2010, Jakup Krisniqi, President of the Assembly of Kosovo, made
statements to the eect that if Kosovo Serbs in Northern Kosovo wished to secede
then, Albanians in southern Serbia are ready to join Kosovo.118 In response, Oliver
Ivanovic, an ocial in the Serbian Ministry for Kosovo stated that, the Serbian gov-
ernment does not advocate any kind of partition or secession. In relation to a form
of land swap he further said that: [I]t would make no sense to exchange ones own
property for ones own property. South Serbia is also the territory of Serbia.119 This
exchange triggered a reaction from the head of the citizen group National Move-
ment of Albanians, Orhan Redzepi, for Presevo (amongst other municipalities) to,
turn fully towards Pristina, with the intention of forming part of Kosovo.120
Ibid.
See note above, .
Ibid.
Beata Huszka, The Presevo Valley of Southern Serbia alongside Kosovo: The Case for
Decentralisation and Minority Protection, Centre for European Policy Studies, Policy
Brief, No. (January ), .
Ibid. .
Southern Serbia ready to join Kosovo, B News, February , Politics sec-
tion, online. Accessed March . http://www.b.net/eng/news/politics-article.
php?yyyy=&mm=&dd=&nav_id=.
Kosovo Speakers secession statement disturbing for Serbs Serbian ocial, B
News, February , transcript available from BBC Monitoring Europe Political.
Local Albanian politician urges annexation of southern Serbia to Kosovo, FoNet.
February , available from BBC Monitoring Europe Political.
The concerns regarding governance in Northern Kosovo, and their ow-on ef-
fects in municipalities with ethnic Albanian populations in Serbia such as the Pre-
sevo Valley, may provide an opening for negotiations between Kosovo and Serbia.
Should this possibility arise, the use of alternative principles of international law,
such as the principle of uti possidetis, may provide the parties involved with a dier-
ent viewpoint on the dispute which could potentially result in some headway being
made towards a solution that is acceptable to both parties. To consider this prospect,
it is necessary to consider the principle of uti possidetis and its application, both in
this region and more generally, to see how it may be applied to the Kosovo Question.
3 Uti Possidetis and the Dissolution of Yugoslavia
a An Overview of the Principle of Uti Possidetis

The principle of uti possidetis was transposed from Roman jus civile into interna-
tional law to facilitate the decolonisation of Latin America during the early nine-
teenth century and large parts of Africa and Asia in the mid-twentieth century.
It sought to avoid fratricidal struggles and external territorial claims by ensuring
that: new States will come to independence with the same boundaries they had
when they were administrative units within the territory or territories of a colonial
power.121 Accordingly, independence was deemed to be the critical date for xing
the territorial parameters of the new State. By endorsing the continuity of colonial
territorial frameworks, the principle was widely seen as a signicant constraint on
the exercise of the right to self-determination since colonial boundaries were typi-
cally drawn with little regard to the political, ethnic and cultural cleavages that had
previously divided colonised peoples. However, despite this ongoing doctrinal ten-
sion, the international communitys response to a series of post-Cold War State dis-
solutions has rendered uti possidetis a general principle of international law and thus
its application beyond the colonial context now seems assured.122
b The Dissolution of the Socialist Federal Republic of Yugoslavia

The preamble of the 1974 Constitution of the Socialist Federal Republic of Yugo-
slavia (SFRY) acknowledged that the SFRYs nations were entitled to the right of
See Malcolm N. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris To-
day, British Yearbook of International Law (): , ; Malcolm N. Shaw, Peo-
ples, Territorialism and Boundaries, European Journal of International Law ():
; and Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of
New States, American Journal of International Law (): ; Peter Radan, Post-
Secession International Borders: A Critical Analysis of the Opinions of the Badinter
Commission, Melbourne University Law Review (): .
This position is endorsed in the Badinter Opinions, discussed in section below.
self-determination.123 It was widely assumed that only the majority population of the
SRFYs republics (and Yugoslav Muslims) were nations for this purpose.124 In con-
trast, Article 1 recognised the Serbian provinces of Kosovo and Voivodina as autono-
mous, but the Albanians and Hungarians, concentrated in those territories were
distinct nationalities. Consequently, it cannot be argued that these political units
were accorded the constitutional right of self-determination under the 1974 Consti-
tution. Instead, the Constitution recognised Kosovo and Voivodina as autonomous
entities and they were granted extensive federal powers within the SFRY.125 As a re-
sult of these hybrid powers and responsibilities, it has been claimed that Kosovo and
Voivodina achieved a quasi-republic status under the 1974 Constitution.126
The European Community (EC) Conference on Yugoslavia was convened in re-
sponse to the existential crisis unfolding in the SFRY throughout 1990-1. The Badint-
er Arbitration Committee was tasked with advising the EC Conference on the legal
issues which might arise from the SFRYs constitutional disintegration. In Opinion
No. 1, the Committee recognised that Yugoslavia was already in the process of dis-
solution. However, it sought to maintain the territorial integrity of the SFRYs con-
stituent republics for the purpose of creating new States. This was part of a wider
commitment reected in The Hague Statement and the EC Conference on Yugosla-
vias draft Convention.127
The terms nation and republic were somewhat confused in the Yugoslav con-
stitutional context. Nevertheless, the Badinter Committee equated the terms for its
purposes. Consequently, it endorsed the constitutional right of self-determination
for the SFRYs republics, in keeping with the 1974 Constitution.128 However, it chose
to limit the eects of the decision to transform constitutional entitlements into ex-
ternal self-determination by reference to the principle of uti possidetis. In Opinion
No. 2, which concerned the question of whether the ethnic Serb populations within
Croatia and Bosnia-Herzegovina possessed the right of self-determination in inter-
national law, the Badinter Committee was of the view that:
[I]nternational law as it currently stands does not spell out all the implications of the
right to self-determination. However, it is well established that, whatever the circum-
Although the Constitution did not identify the means by which this right could be ex-
ercised.
ford University Press, ), .
This was echoed in Principles and of the Serbian Constitution, which recog-
nised Kosovos sovereign rights and it was entrenched in Kosovos Constitution as
well, ibid. .
Ibid.
September and November , respectively.
See Marc Weller, The International Response to the Dissolution of the Socialist Fed-
eral Republic of Yugoslavia, American Journal of International Law (): ; and
Matthew Craven, The European Community Arbitration Commission on Yugoslavia,
British Yearbook of International Law (): .
stances, the right to self-determination must not involve changes to existing frontiers at
the time of independence (uti posseditis juris) except where the states concerned agree
otherwise.129
The Badinter Committee was acting in an advisory capacity to the EC Conference

on Yugoslavia. Consequently, its Opinions were not strictly binding upon the SFRY
republics. Nevertheless, the Committees work has been widely regarded as rep-
resenting an authoritative interpretation of the international law applicable to the
SFRYs dissolution.
Kosovos status was not considered by the Committee. This issue was not in-
cluded in the political processes which sought to manage the eective transition
of governmental authority to the newly-created States.130 At the time of the SFRYs
dissolution, the international community was particularly concerned about the fu-
ture integrity of Bosnia-Herzegovina; specically the denial of the separatist claims
concerning the ethnic Serb enclaves of Krajina (Croatia) and Srpska (Bosnia-Herze-
govina). The Badinter Committee refused to condone the subdivision of this former
republic along ethnic lines. It preferred to put its faith in the construction of an
elaborate minority rights regime and an ongoing international security presence.
The international community had no appetite for recognising Kosovos claims of
self-determination and independence as, in its view this would have undermined
eorts to persuade Serbia to accept the consequences of the SFRYs dissolution. In
addition, international actors were anxious to minimise the precedential value of
the SFRYs dissolution. This stance clearly reinforced the distinction that could be
drawn between the SFRY autonomous entities and republics, from the perspective
of international law.
The commitment to the SFRYs internal territorial framework was also reected
in the EC Guidelines on the Recognition of New States in Eastern Europe and in the
Soviet Union.131 This instrument provided the ECs conditions for the recognition of
new States in this context. It required, inter alia, that any putative State would need
to demonstrate, respect for the inviolability for frontiers which can only be changed
by peaceful means and by common agreement. Further, the EC Declaration on Yu-
goslavia set out the conditions for recognition for the former Yugoslavian republics
by EC States.132 These included: compliance with the EC Guidelines; acceptance of
the Conference on Yugoslavias 1991 draft Convention (which inter alia expressed a
commitment to the territorial integrity of the SFRYs republics) and a requirement
that the republics enact constitutional guarantees stating that they did not maintain
any territorial claims inter se.

Kosovo did apply for recognition along with the republics of Croatia, Bosnia-Herzegovi-
na, Slovenia and Macedonia. However, its application, which was made on December
, was not considered by the Badinter Committee.
December , see note above, .
December , ibid. .
4 Uti Possidetis and the Kosovo Question
a The Territorial Implications of Kosovos Claim to Statehood

Kosovos claim to statehood is largely justied as an exercise of the right to self-de-
termination on the part of its constituent people, the Kosovo Albanians.133 Whether
the right to self-determination can sanction Kosovos act of secession is controver-
sial.134 This essay does not attempt to address this issue directly. Instead, it considers
the related issue of the territorial parameters of the emergent State of Kosovo and
the question of how Kosovo and Serbia might be able to settle the territorial chal-
lenges that ow from the creation of this new State. Pressing questions in this regard
include: if the Kosovo Albanians posses the right to self-determination, and that the
choice of independence is a legitimate means of exercising it, what are the territorial
implications of Kosovos secession from Serbia? Does the State of Kosovo succeed to
the territory of the former SFRY autonomous entity of Kosovo? If so, how can this
outcome justied by international law?
It could be argued that that the State of Kosovo simply succeeded to the territory
of the former SFRY autonomous entity of Kosovo. Territorial continuity has been
widely assumed by the international community in this regard. First, UN Security
Council Resolution 1244 (1999) presupposed that the former SFRY autonomous en-
tity of Kosovo is the territorial unit for the purposes of that resolution.135 Second,
Article 1(2) of UNMIKs Constitutional Framework for Provisional Self-Government
(2001) provided that: Kosovo is an undivided territory throughout the Provisional
Institutions of Self-Government established by this Constitutional Framework for
the Provisional Self-Government (Constitutional Framework) shall exercise their
responsibilities.136 Nevertheless, these instruments were premised on the view that
Kosovo remained part of the Federal Republic of Yugoslavia (FRY) and thus the
FRYs successor State, Serbia. It must be remembered that Kosovos 2008 Declara-
tion of Independence was unilateral. Accordingly, the territorial parameters of the
new State were not settled under the auspices of the UN or by the international
community. Further, it must be acknowledged that, during the UN era, no seced-
ing entity has managed to become a fully edged State without the consent (or at
least the acquiescence) of the parent State.137 Given the way that the Kosovo Ques-
It has been argued that remedial self-determination/secession can be justied either

by a failure of representation by the state concerned or cogent evidence of systematic
repression by that state. See Weller, note above; and Weller, note above, -.
The classical position is that there is no right to secession in international law. See
Crawford note above; and the judgment of the Canadian Supreme Court in Reference
re. Secession of Quebec [] Supreme Court Reports (Canada).
SC Res. , UN Doc. S/RES/ ( June ).
UNMIK/REG// ( May ).
See Crawford, note above, -. It could be argued that Bangladesh represents an
exception here. However, it was recognised by Pakistan, its parent State, before it was
admitted to the United Nations.
tion has strained the doctrines on recognition, statehood and self-determination

(and the ensuing tension that it has created within the international community), it
was highly unlikely that the ICJ was going to endorse Kosovos claim to statehood
without qualication in its Advisory Opinion. In the circumstances, the territorial
implications of Kosovos claim to statehood are worth considering.
b The Resonance of Uti Possidetis for the Kosovo Question

The Badinter Committees interpretation of the distinction between republics and
autonomous entities in the SFRYs 1974 Constitution has ensured that the princi-
ple of uti possidetis has not informed the debate about the future status of Kosovo
thus far.138 This interpretation has caused many actors and commentators to focus
on events in Serbia from the late 1990s onwards rather than taking a more holistic
view of the situation in Kosovo.139 In sharp contrast, Kosovos political leadership
has always maintained that Kosovos claim to statehood is inextricably linked to the
SFRYs dissolution.140 Support for this approach has been growing in recent years.
For instance, scholars such as Weller have suggested that it might be useful: to
rediscover the status of Kosovo as a constituent unit of a dissolved federation as a
ground for its independence.141 This position is now being adopted by States. For in-
stance, within the context of Kosovos Declaration of Independence, the Belgian gov-
ernment stated that: Kosovos independence is situated within a historical context
that no one can ignore: the disintegration of Yugoslavia, which led to the creation of
new independent States. The independence of Kosovo is part of this framework...142
The adoption of such a position raises the prospective application of uti possidetis in
the Kosovo context and this essay explores this principles potential resonance for
the Kosovo Question.
The FRY (now Serbia) was an established State when the problem of Kosovos sta-
tus attracted international attention. Kosovo is therefore a case of secession rather
than an instance of State dissolution (as with those SFRY republics which acceded
However, an early attempt to relate the principle to Kosovo can be found in Enver
Hansani, Uti Possidetis Juris: From Rome to Kosovo, Fletcher Forum World Aairs
(): . Vidmar, writing in , acknowledges that the case of Kosovo may invite
scholars to re-evaluate the potential application of uti possidetis to instances of State
dissolution. See Jure Vidmar, Montenegros Path to Independence: A Study of Self-
Determination, Statehood and Recognition, Hanse Law Review (): , .
See Colin Warbrick, Kosovo: The Declaration of Independence, International and
Comparative Law Quarterly (): ; and Jure Vidmar, International Legal Re-
ponses to Kosovos Declaration of Independence, Vanderbilt Journal of Transnational
Law (): .
Indeed, the problem of Kosovos status was, in many ways, the catalyst for the SFRYs
dissolution particularly in the light of the abrogation of its autonomous status under the
Serbian Constitution in .
February , quoted in Weller, note above, .
Ibid. .
to independence in 1991/1992). The general application of uti possidetis in the latter

context and its historical origins in the dissolution of colonial empires fuelled
the assumption that principles operation is restricted to situations of State dissolu-
tion. However, while advising on the legality of Quebecs attempted secession, Pellet,
Franck, Shaw, Tomuschat and Higgins concluded that uti possidetis applies to cases
of secession as well. In the light of this authoritative view, uti possidetis should be
considered seriously in the Kosovo context.143
The potential application of uti possidetis to the Kosovo Question is justied by
its application to those SFRY republics which applied for recognition as new States
in 1991/1992.144 The Badinter Committee favoured the continuity of pre-existing ter-
ritorial frameworks. Given that the 1974 SFRY Constitution recognised that Koso-
vo had achieved a quasi-republic status it was open to the Badinter Committee to
acknowledge its suitability for independence.145 However, the Committee was not
acting in a political vacuum. As noted above, Kosovo was capable of acceding to
independence. The international community, though, was more concerned about
making the SFRYs dissolution palatable to Serbia and the hiving-o of Serbian ter-
ritory would not have been conducive to this end. Against this background, the Bad-
inter Committee was not engaged in a simple process of interpreting the relevant
provisions of the 1974 Constitution so that the SFRYs republics could accede to in-
dependence. In fact, it drew selectively from the Constitution and its ndings were
not without legal controversy.146
The administrative lines which identied the SFRY autonomous province of
Kosovo were qualitatively dierent from those lines which identied the six federal
republics under the SFRYs 1974 Constitution. Acting on this constitutional distinc-
tion, the Badinter Committee decided that only the latter could become interna-
tional boundaries for the purpose of creating new States.147 However, it seems that
subsequent political events have substantially reduced the signicance of this quali-
tative distinction from the perspective of international law. In such circumstances,
See Alain Pellet et al., The Territorial Integrity of Quebec in the Event of the Attain-
ment of Sovereignty, para ., quoted in Radan, note above, .
The successful application of this principle in that context also rendered Montenegros
independence in un-contentious, at least from a legal perspective.
Wilde appreciates the importance of the choice of the signiers used to identify the ter-
ritorial parameters of the right of self-determination in this context. See Ralph Wilde,
International Territorial Administration: How Trusteeship and the Civilizing Mission
Never Went Away (Oxford: Oxford University Press, ), .
Radan notes that while the Badinter Committee relied upon the second, fourth and fth
paragraphs of Article of the SFRY Constitution in support of the view that the
boundaries of the SFRY republics could not be altered without their consent, the Com-
mittee ignored paragraphs one and three which provided that the territory of the SFRY
was indivisible and that the borders of the republics could not be altered without their
agreement. See Radan, note above, .
This position clearly informed Montenegros constitutional status within the FRY, one
that allowed it to accede to independence in .
it can be argued that the principle of uti possidetis is now directly relevant to the
Kosovo Question.
The act of transforming the administrative delimitations of the former SFRY au-
tonomous entity of Kosovo into the international boundaries of the State of Kosovo
ensures the achievement of territorial order by reference to a principle that has been
applied consistently to the SFRYs successor States and a series of other State dis-
solutions in Eastern Europe. Further, uti possidetis seems to bolster Pristinas claim
that the State of Kosovo has succeeded to the territory of the former SFRY autono-
mous entity of Kosovo. Finally, the principles application in the present context al-
lows international law to endorse the working assumption made by the international
community throughout: that Kosovo is a distinct territorial unit (regardless of the
question of its status).
But if uti possidetis is now considered to be relevant to the Kosovo Question,
what contribution could the principle make to its resolution? If it simply turns in-
ternal administrative delimitations into international boundaries and upholds the
intangibility of the resultant frontiers, the principle has very little to oer. However,
this essay argues that a revised interpretation of the principle of uti possidetis could
make a valuable contribution to resolving the Kosovo Question.
5 The Presumptive Quality of Uti Possidetis
a Latin America
In Latin America, the Iberian colonial powers did not always occupy the territories
they claimed eectively. As a result, during the decolonisation of Spanish America
in the early nineteenth century, the principle of uti possidetis juris was developed to
establish the formal territorial parameters of successor States in a way that would
protect them against external territorial claims justied via the doctrine of terra
nullius.148 The genitive juris referred to the formal attribution of legal title which
could be founded on constructive or ctional rather than actual occupation of the
territory in issue.149 It quickly became a regional custom in the former Spanish ter-
ritories.150
According to Ratner, uti possidetis provides that states emerging from decolo-
nization shall presumptively inherit the colonial administrative borders that they
See the Separate Opinion of Judge Ajibola in the Territorial Dispute (Libya/Chad) Case,
ICJ , para. ( February). Portugal favoured adopted a de facto variant of uti
possidetis which focused on actual rather than notional possession.
Ibid. para. ; Frontier Dispute (Burkina Faso/Mali) Case, ICJ , para. (
December); and the Case Concerning Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras), ICJ , para ( September).
See Article of the Treaty of Confederation signed at the Congress of Lima in . See
L. D. M. Nelson, The Arbitration of Boundary Disputes in Latin America, Netherlands
International Law Review (): , .
held at the time of independence.151 Further, Shaw observes that the principle is: a
presumption of law concerning one aspect of the transmission of sovereignty from
an existing state to a new state.152 Its presumptive quality means that, unless there
is evidence to the contrary, dened units within one sovereign will come to inde-
pendence within that territorial dened unit.153 While the presumptive quality of
uti possidetis is an inherent characteristic of the principle,154 it has often been over-
looked, especially in recent years.
In certain instances, the newly independent Latin American States were prepared
to revise inherited territorial delimitations by means of treaty and/or arbitration to
promote the stability of their international boundaries. The opportunity for territo-
rial/boundary adjustment may have been sparingly used and it was certainly tempo-
rally limited. However, while the new States acknowledged the value of maintaining
the territorial status quo inherited on achieving independence, at the moment of in-
dependence (and during its immediate aftermath) they recognised that the received
delimitations could be varied by consent according to a wide range of equitable con-
siderations. Regional practice quickly reected this scope for revision.155
Numerous instances of arbitration concerning the resolution of territorial/
boundary disputes in Latin America have shown that the presumptive nature of uti
possidetis has endured in the postcolonial era.156 The capacity of all States to vary
their boundaries by treaty is well settled in international law.157 However, during the
process of decolonisation in Latin America, the application of the principle of uti
Ratner, note above, (emphasis added).

Shaw, note above, .
Ibid. .
For a discussion of the Roman law origins of uti possidetis see Joshua Castellino and
Stephen Allen, Title to Territory in International Law: A Temporal Analysis (Dart-
mouth: Ashgate, ), Chapter .
For instance, see the Denitive Treaty of Peace and Friendship, Bolivia-Peru, No-
vember , Article XVI in () British and Foreign State Papers, , -,
(such cessions may be reciprocally made, as may be necessary for an exact and natural
demarcation [sic]), quoted in Ratner, note above, . Also see the Swiss Federal
Councils decision in the Columbia/Venezuela Arbitration in Hackworth, Digest of
Nelson suggests that the fundamental function of uti possidetis was to serve as a legal
criterion for the resolution of disputes which had been referred to arbitration. See note
above, . For instance, see The Honduras Borders Case, note below; Bolivia-
Peru Arbitration American Journal of International Law (): . Article of
Special Agreement provided: Whenever the royal acts and dispositions do not dene
the dominion of a territory in clear terms, the Arbitrator shall decide the question ac-
cording to equity, keeping as near as possible to the meaning of those documents and
the spirit which inspired them, quoted in A. L. W. Munkman, Adjudication and Ad-
justmentInternational Judicial Decision and the Settlement of Territorial and Bound-
ary Disputes, British Yearbook of International Law (-): , .
See the Libya/Chad Case, note above, . For recognition of the axiom within the
context of uti possidetis see the El Salvador/Honduras Case, note above, .
possidetis justied a degree of exibility concerning the territorial parameters of the

new States that would have been almost unthinkable in situations where established
States were contemplating the revision of a common boundary.
As the next sub-section will show, the dierence between the two situations lies
in the strength of the presumption in favour of continuity. Typically, in a territo-
rial dispute between established neighbouring States, the presumption in favour of
the territorial status quo is virtually overwhelming; thus, the political availability
of consent to vary the existing territorial position is very limited. In contrast, in the
Latin American context, regional support for the principle of uti possidetis encour-
aged States to approach territorial/border disputes with a degree of exibility there-
by increasing the political availability of consent to vary the frontiers inherited at
independence. Accordingly, in Latin America, uti possidetis weakened the presump-
tion of territorial continuity in order to promote regional stability in the longer term.
This essay investigates whether this enlightened approach to territorial/border
disputes embodied within the principle of uti possidetis has endured in international
law and, in any event, it asks whether there is scope for resurrecting a similar ap-
proach in the context of Kosovo. To that end, the next subsection will examine the
application of uti possidetis during the decolonisation of Africa in the 1960s and
1970s. Further, it will analyse how this principle was used to tackle the problems
owing from the dissolution of the SFRY and USSR in the 1990s.
b Africa
As a result of its successful application in the Latin American context, uti possidetis
was subsequently invoked to facilitate the decolonisation of Africa during the 1960s
and 1970s. Support for the principle can be found in Article 3(3) of the Charter of the
Organisation of African Unity (OAU), in which member States pledged: respect for
the sovereignty and territorial integrity of each State and for its inalienable right to
independent existence. It has been claimed that the principle was implicitly recog-
nised by the OAUs Conference of Heads of State and Government in Cairo in 1964,
which declared that member States: solemnly pledge themselves to respect the
borders existing on their achievement of national independence.158 However, the
normative content of uti possidetis was fundamentally altered when it was applied
in Africa.159 In this context, the principle became closely tied to the meta-principle
of territorial integrity which protects an established States territorial sovereignty.160
The principle of territorial integrity, which is inextricably tied to the principle
of non-intervention, was endorsed by Article 2(4) of the UN Charter. It provides
that: All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any State,
OAU AHR/Res. (). This claim was made by the ICJ in the Burkina Faso/Mali Case,
note above, (discussed below).
See Malcolm N. Shaw, Title to Territory in Africa (Oxford: Oxford University Press,
) -; and Ratner, note above, .
GA Res. (XXV), A/RES/ ( October ).
or in any other manner inconsistent with the Purposes of the United Nations. The
principle has been subsequently reinforced by the Declaration on the Principles of
International Law concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations (1970). It provides that: Every
State has the duty to refrain in its international relations from the threat or use of
force against the territorial integrity or political independence of any State Ac-
cording to the ICJ in the Nicaragua Case, this provision is indicative of customary
international law on this issue.161 Moreover, Principle IV of the Helsinki Final Act
(1975) states: [t]he participating States will respect the territorial integrity of each of
the participating States.162
While the distinction between the principles of uti possidetis and territorial in-
tegrity may be ne, it is an important one. As Shaw explains:
[Uti possidetis] is a transitional mechanism and process which concerns the transmission
of sovereignty from a previous sovereign authority to the new state. It is, therefore, part
of the larger principle relating to the stability of territorial relationships. It provides the
territorial delineation for the process of establishment of a new state by positing, absent
of special factors, the continuation of the pre-existing line, whatever provenance that line
previously claimed. It is limited both temporally and conceptually to this situation. Once
the new state is established, the principle of uti possidetis will give way to the principle
of territorial integrity, which provides for the international protection of the new state so
created. While it freezes the territorial situation during the movement to independence,
uti possidetis does not prescribe a territorial boundary which can never be changed. It is
not intangible in this sense.163
In essence, the principle of uti possidetis operates before the new State is established
despite it being a component of the process of independence. In contrast, from the
moment of independence, it is the principle of territorial integrity that protects the
new State at an inter-State level. It is worth noting that the scope and function of
the principle of territorial integrity was recognised by the ICJ in its Kosovo Opinion.
After setting out the abovementioned provisions of the UN Charter, the 1970 UN
Declaration and the Helsinki Final Act it held that: the scope of the principle of ter-
ritorial integrity is conned to the sphere of relations between States.164
However, despite such widespread and authoritative recognition of the limits of
the territorial integrity principle, in the African context, uti possidetis was increas-
ingly equated with it and it became known as the doctrine of the inviolability of
Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Unit-
ed States/Nicaragua), (Merits) ICJ , para ( June).
CSCE Helsinki Final Act, International Legal Materials (): .
See Shaw, note above, . Jan Klabbers and Rene Lefeber also share this view. Af-
rica: Lost Between Self-determination and Uti Possidetis, in Peoples and Minorities in
International Law, eds. Catherine Brolmann et al. (Dordrecht: Martinus Nijho, ):
, .
See note above, para .
inherited territorial frontiers. For instance, in the Burkina Faso/Mali Case, the ICJ
noted that it had been asked to resolve the dispute by reference to the, principle of
the intangibility of frontiers inherited from colonization. It, cannot disregard the
principle of uti possidetis juris, the application of which gives rise to this respect for
the intangibility of frontiers.165 The ICJ has used these terms interchangeably ever
since.166 Further, in the Burkina Faso/Mali Case, it observed that Article 16(1) of the
OAUs Cairo Declaration, deliberately dened and stressed the principle of uti pos-
sidetis juris contained only in an implicit sense in the [OAU] Charter.167
The process of African decolonisation was driven by international laws recogni-
tion that colonised peoples possessed the right to national self-determination,168 and
that colonial powers were under an obligation to realise that right.169 It was clear
that the right would have to operate within a territorial framework and that the
balance between territorial entitlement and the right to self-determination would
be a dicult one. While paragraph 2 of the Colonial Declaration (1960) recognised
that colonised peoples possessed the right of self-determination as a matter of in-
ternational law,170 under paragraph 6, the exercise of this right could not undermine
the territorial integrity of the (colonial) national unit.171 Accordingly, the normative
tension between these two fundamental principles of international law would inevi-
tably lead to practical problems on the ground. In the circumstances, the (colonial)
territorial status quo represented a practical means of giving eect to this right.
Consequently, the principle of territorial integrity (and thus uti possidetis) was gen-
erally favoured at the expense of the right to self-determination during the process
of African decolonisation.
While the ICJ has recognised the potential conict between uti possidetis and the
exercise of the right to self-determination in this context, it suggested that:
[T]he maintenance of the territorial status quo in Africa is often seen as the wisest course,
to preserve what has been achieved by peoples who have struggled for their independ-
Burkina Faso/Mali Case, note above, .

For instance, see the Case Concerning the Frontier Dispute (Benin/Niger), ICJ ,
para ( July).
Burkina Faso/Mali Case, above note , -.
Shaw, note above, .
See Article UN Charter; the Declaration on the Granting of Independence to Co-
lonial Countries and Peoples, GA Res. (XV), A/RES/ ( December ),
(Colonial Declaration); the Declaration on Friendly Relations, see note above; the
Namibia Advisory Opinion, ICJ ( June); and the Western Sahara Advisory
Opinion, ICJ ( October).
Paragraph of the Colonial Declaration provides: All people 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.
Paragraph provides: Any attempt aimed at the partial or total disruption of the na-
tional unity and the territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations.
ence, and to avoid a disruption which would deprive the continent of the gains achieved
by much sacrice.172
The rigid interpretation of uti possidetis followed in Africa was clearly favoured by
the international community and by the withdrawing colonial powers because the
notion of territorial continuity would ostensibly promote order and thus interna-
tional stability. In addition, it was also attractive to those African political elites
which were primed to lead the newly independent States as it oered principled con-
tinuity and sought to stave o irredentist forces and internal conict.173
As the new African States agreed to equate uti possidetis with the principle of
territorial integrity at the OAU it could be argued that the principles consensual
basis was maintained. The importance of consent was recognised by the ICJ in this
context. It observed that: The essential requirement of stability in order to survive
has induced African States judiciously to consent to the respecting of colonial
frontiers 174 Further, cases where the principle of uti possidetis was not applied
could be seen as indicative of the continuing importance of consent in relation ter-
ritorial units established on independence.175 It could, therefore, be claimed that the
decision not to apply uti possidetis in exceptional cases provides cogent evidence
that the principle remained presumptive rather than dispositive in the African con-
text and that it remained distinct from the territorial integrity principle. However,
in fact, the consent of colonised peoples was not typically sought regarding the form
and shape independence in Africa. And, as a matter of international law, it was not a
requirement in the vast majority of cases.176
During the decolonisation of Africa, uti possidetis lost its presumptive quality
and it became indistinguishable from the rigid meta-principle of territorial integrity.
According to Shaw, the African conception of uti possidetis: operat[ed] as a block-
Burkina Faso/Mali Case, above note , .

See, e.g. African Boundary Problems, ed. C. G. Widstrand (Uppsala: Scandinavian Insti-
tute, ).
Burkina Faso/Mail Case, above note , .
Such cases included the British Cameroons, British Togoland and Ruanda-Urundi.
However, the decision to address the question of territorial partition in these cases was
determined by the UN acting in concert with the concerned colonial power rather than
by the aected nascent African political entities. See UN GA Res. (X), A/RES/
( December ) (British Togoland); UN GA Res. (XIII), A/RES/ ( May
) (British Cameroons); and UN GA Res. (XV), A/RES/ ( December )
(Rwanda-Urundi). The extent to which these cases provide evidence of state consent is
debatable. See the Northern Cameroons Case (Cameroon v. UK), ICJ Reports (
December), (where Cameroon challenged the legality of the processes that resulted in
the partition of the British Cameroons).
Compliance with the democratic process is not a prerequisite for the achievement of
independence in the colonial context see Western Sahara Opinion, note above, .
However, it is mandatory in relation to a peoples decision to associate or integrate with
an independent State, see UN GA Res. (XV), A/RES/ ( December ),
Principles VII and IX.
ing mechanism to any post-independence territorial rearrangement except where

attained by mutual consent.177 However, the OAUs common position regarding the
operation of uti possidetis made the achievement of consensual territorial revisions
so exceptional that the principles presumptive character was undermined as a re-
sult.
c Yugoslavia
As noted in section 2 of this essay, there was a substantial political commitment to
maintaining the territorial integrity of the SFRYs constituent republics for the pur-
pose of creating new States. This commitment was expressed in the EC Guidelines
on the Recognition of New States in Eastern Europe and the Soviet Union; the EC
Declaration on Yugoslavia and the draft Convention of the Conference on Yugosla-
via (1991). Further, it was bolstered by the international legal principle of uti posside-
tis. The Badinter Committee elaborated upon its understanding of this principle in
Opinion No. 3:
Except where otherwise agreed, the former boundaries become frontiers protected by
international law. This conclusion follows from the principle of respect for the territorial
status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though
initially applied in settling decolonisation issues in America and Africa, is today recog-
nized as a general principle, as stated by the International Court of Justice in its Judgment
of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, (1986)
Law Reports 554 at 565):
Nevertheless the principle is not a special rule which pertains solely to one specic
system of international law. It is a general principle, which is logically connected with the
phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose
is to prevent the independence and stability of new states being endangered by fratricidal
struggles...178
This Opinion reinforced Opinion No. 2, which stated that: the right to self-determi-
nation must not involve changes to existing frontiers at the time of independence (uti
possidetis juris) except where the states concerned agree otherwise.179Accordingly,
the Badinter Opinions represent another stage in the transformation of uti pos-
sidetis from a presumptive principle into an inviolable one.180 It could be argued
that, by recognising that States could alter their shared international boundaries by
consent, the Badinter Opinions oered a degree of exibility regarding the territo-
rial outcomes in situations of independence. Nevertheless, the general tenor of the
Shaw, note above, .

national Legal Materials (): -.
See note above.
Ratner also acknowledges the presumption in favour of the territorial status quo in this
context. See note above, .
Opinions endorsed the territorial status quo to such an extent that they render the
prospect of territorial revision deeply unattractive at a political level. The issue of
consent in such situations is explored further below.
d The Soviet Union

The EC Guidelines were also designed to be applied to the USSRs dissolution and it
is perhaps unsurprising that the former Soviet republics invoked the principle of the
inviolability of inherited frontiers to manage this process. Article 5 of the Agreement
Establishing the Commonwealth of Independent States (CIS) provided that: the
High Contracting Parties acknowledge and respect each others territorial integrity
and the inviolability of existing borders within the Commonwealth.181
The possibility of varying international boundaries by common agreement was
acknowledged in the Badinter Opinions. However, the Badinter Committees in-
terpretation of uti possidetis, the EC Guidelines and the approach to the territo-
rial question adopted by the CIS have all contributed to the confusion between the
principles of uti possidetis and territorial integrity. Shaw acknowledges that the CIS
Agreement and the Alma Ata Declaration (and, by implication, the EC Guidelines):
refer essentially to the principle of territorial integrity protecting international
boundaries, but, in his view, it is clear that the intention was to assert and reinforce
a uti possidetis doctrine, not least in order to provide international, regional and
national legitimation for the new borders.182 Shaws position is that it is easier for
new States to endorse pre-existing territorial boundaries rather than use ethnic or
historical considerations in order to revise such delimitations.183 This standpoint is
understandable. Nevertheless, it is dicult to understand how the equation of the
presumptive principle uti possidetis with the principle of the inviolability of existing
frontiers represents the essence of uti possidetis or how it provides normative clarity
in relation to the associated doctrines concerning territoriality.
Uti possidetis has always enjoyed a close relationship with the meta-principle of
territorial integrity as both are connected to the maintenance of the territorial status
quo. However, while uti possidetis oers a principled opportunity for new States to
embrace the territorial frameworks they have inherited, the principle did not require
such States to accept to them. In contrast, the principle of territorial integrity holds
that territorial frameworks should not be altered in the event of State succession.
And although this principle recognised the possibility that international boundaries
Commonwealth of Independent States Agreement, December , International Le-

gal Materials (): . Further, the Alma Alta Declaration which was agreed by
of the former Soviet Republics declared that they pledged themselves to: recognising
and respecting each others territorial integrity and the inviolability of existing borders.
December . International Legal Materials (): . For a brief background
account see Roland Rich, Recognition of States: The Collapse of Yugoslavia and the
Soviet Union, European Journal of International Law (): .
Shaw, note above, .
Ibid. .
may be varied by consent, it assumes that this course of action is a highly exceptional
one.
The fundamental dierence between the principle of uti possidetis and the princi-
ple of the territorial integrity lies in the respective weights given to the presumption
of continuity. With regard to the operation of the principle of uti possidetis, in the
context of Latin American decolonisation, the presumption in favour of the territo-
rial status quo was rebuttable in certain situations. However, it grew much stronger
when it was applied during the decolonisation of Africa, wherein it was construed in
such a way that it became virtually indistinguishable from the strong presumption
which underpins the territorial integrity principle. Increasing normative confusion
between the two principles has undermined the potential utility of uti possidetis.
Specically, it reduces the contribution that uti possidetis can make to resolving dif-
cult cases of dissolution and secession because it diminishes the scope for the prin-
cipled revision of inherited territorial frameworks at the moment of independence.
As with the process of African decolonisation, the ability of new States to vary
the frontiers inherited at independence by agreement in the dissolutions of the SRFY
and the USSR was restricted in favour of the territorial status quo because it was
thought to promote regional stability at a critical time. However, by advancing no-
tions of collective agreement on a regional basis these systematic approaches have
discouraged territorial adjustments at a moment when principled revision may have
actually facilitated regional stability. Accordingly, such approaches have strength-
ened the presumption in favour of the territorial status quo which has proved to
be unsustainable in the Kosovo context. By recognising the provisionality of the
territorial status quo inherited at independence this essay argues that uti possidetis
aords international actors and States the chance to negotiate signicantly better
international boundaries than those forged in the theatres of Africa, the SFRY and
the USSR.184
e The Role of Consent in Territorial/Boundary Revisions

It is well-settled that States can vary a common boundary by consent. In the Case
Concerning the Temple of Preah Vihear, the ICJ observed that:
In general, where two countries establish a frontier between them, one of the primary
objects is to achieve stability and nality. This is impossible if the line so established can,
at any moment, and on the basis of continuously available protest, be called into question
and its rectication claimed.185
For instance, in the (former) Yugoslavian context, the common boundary between
Slovenia and Croatia was xed by reference to the Badinter Committees interpreta-
See Ratner, note above, .

ICJ , ( June). For a discussion of this doctrine see Kaiyan H. Kaikobad, Some
Observations on the Doctrine of Continuity and Finality of Boundaries, British Year-
book of International Law (): .
tion of uti possidetis when they acceded to independence in 1991. However, in July
2001, Slovenia and Croatia negotiated a draft Treaty concerning the Common State
Border (the Drnovsek-Racan Agreement), which sought to vary the uti possidetis line
between the two States in certain areas.186
It could be argued that, as international boundaries can be varied by the consent
of the aected States, uti possidetis is merely a stop-gap in cases where the pos-
sibility of boundary revision is being contemplated. However, ve points are worth
making in this regard. First, as noted in the previous subsection, by endorsing a rigid
interpretation of uti possidetis, international law makes it less likely that States will
seek to vary their common boundaries unless the need is particularly acute. Second,
regardless of the possible changes mooted by States in such situations, the weight
of the territorial status quo is considerable. Therefore, attention must be paid to the
potential application of uti possidetis as it acts as the measure by which any negoti-
ated changes should be judged. Third, the argument advanced in this essay that
the presumption on which uti possidetis is based is weaker than has been widely sup-
posed allows for the presumption to be rebutted where there are equitable reasons
for so doing. The exibility character of uti possidetis lends it utility as mechanism
to be used during negotiations concerning territorial adjustment/boundary revi-
sion. Fourth, cases of secession will invariably be dierent from situations where
established neighbouring States are engaged in the act of establishing an interna-
tional boundary. In the present context, it is important to remember that the State
of Kosovo has been carved out of Serbian territory without Serbias consent. This
fact is bound to aect the modalities of any negotiated settlement between the two
parties. Finally, in the light of the problems generated by the enclaves on either side
of the Kosovo-Serbia border the administrative delimitations of the former SFRY
entity of Kosovo are not capable of providing a stable international frontier of the
new State of Kosovo.
f Self-Determination and Uti Possidetis

As discussed in section 3 of this essay, the international communitys working as-
sumption throughout its involvement in Kosovo has been that Kosovo constitutes a
territorial unit which is distinct from the FRY/Serbia. Kosovos claim to statehood
builds on this assumption. Moreover, the principle of uti possidetis can be used to
endorse this position at the level of international law. If, for the sake of argument, it is
accepted that the creation of the State of Kosovo can be justied by reference to the
Kosovo Albanians right to remedial self-determination/secession that entitlement
must be exercised within a territorial framework. In the circumstances, it appears to
However, Croatia ultimately refused to sign the draft Treaty. A boundary dispute sub-
sequently arose between the two States. Croatia has challenged the integrity of the
boundary in a number of areas. Since , the EU has sought to negotiate an arbitra-
tion agreement between the two States to resolve this dispute within the context of
its accession programme. The two governments signed the arbitration agreement on
November . However, the agreement has yet to be ratied.
follow that the territorial unit for the purpose of exercising this right is the former
SFRY autonomous entity of Kosovo. However, this conclusion ignores the rights of
other societal groups that inhabit Kosovo, particularly the ethnic Serbs located in
Northern Kosovo?
As noted earlier, a minority rights regime was included in UNMIKs Constitu-
tional Framework for Provisional Self-Government (2001). It was further developed
in the Ahtisaari Plan (2007), which Kosovo endorsed as part of its Declaration of
Independence in 2008.187 However, as the rst section of this essay discussed, a mi-
nority rights regime has not been eectively implemented in Northern Kosovo. In
such circumstances, could the Kosovo Serbs access the right to self-determination?
The right to internal self-determination has gained considerable support in inter-
national law in the last two decades. This signicant development has the capacity to
ameliorate secessionist tensions in all but the most exceptional of cases.188 In cases of
external self-determination, uti possidetis is still required to perform its dual role of
preventing external territorial claims and avoiding internal conicts. However, the
ascendance of the right to internal self-determination, with its core requirement of
representative government, should lead to a re-evaluation of the interplay between
external self-determination and uti possidetis. In principle, the internal administra-
tive delimitations which could be transformed into the international boundaries of
new States should be susceptible to reappraisal in the light of the self-determina-
tions increasing focus on representative government.
There may be compelling reasons not to endorse claims to statehood made by
isolated enclaves, as in the cases of Krajina and Srpska.189 Nonetheless, in principle,
there are legitimate reasons for revising boundaries where compact ethnic popula-
tions are found on either side of a common State border, especially when that bound-
ary was previously an internal administrative delimitation of a single State. The
presumption in favour of the territorial status quo at the moment of independence
should be recognised but provisional boundaries should not be viewed as inviolable
as a matter of course. Accordingly, the normative developments in the discourse of
self-determination support the argument for softening the principle of uti possidetis
in the post-Cold War era in the interests of international stability.190
Report of the Special Envoy of the Secretary-General on Kosovos Future Status,

March , UN Oce of the Special Envoy for Kosovo. Accessed June . http://
www.unosek.org/unosek/en/statusproposal.html.
For a discussion of this issue see the judgment of the Canadian Supreme Court in Ref-
erence re Secession of Quebec, note above. Also see Democratic Governance and
International Law, eds. Gregory Fox and Brad Roth (Cambridge: Cambridge University
Press, ).
See Thomas M. Franck, Postmodern Tribalism and the Right to Secession, in Brl-
mann, note above, .
This argument does not necessarily threaten the principle of the continuity and nality
of international boundaries. In fact, a case such as Kosovo does not engage this prin-
ciple because the territorial parameters of Kosovo were not established pursuant to an
In the present context, if the creation of the State of Kosovo can be justied by
reference to a claim of remedial self-determination/secession on the part of Kosovo
Albanians then, in principle, only those broad territories inhabited by Kosovo Al-
banians should be allowed to secede (as opposed to the entire territory which was
formerly the SFRY autonomous entity of Kosovo). The logic of remedial self-deter-
mination/secession should, therefore, allow the ethnic Serb population in North-
ern Kosovo to choose to integrate with Serbia, if they so wish. For this to occur, it
would be necessary to establish that the ethnic Serbs of Northern Kosovo qualify as
a people in order for them to access the right to self-determination as a matter of
international law. On an orthodox reading of the situation, it would be dicult to
conclude that they were anything other than a national minority and that the right is
inaccessible to them. However, if the case of Kosovo has reinforced the existence of a
remedial self-determination/secession for the Kosovo Albanians, the rights of other
societal groups should also be reappraised in the light of this development.
In particular, parallels could be drawn with Quebecs attempt at secession from
the Canadian Federation. While the Canadian Supreme Court decided that Quebec
was not entitled to secede, had the Quebecois claim to remedial self-determination
been stronger, a formidable obstacle would have arisen the impact that secession
would have had on the rights of other societal groups located in Quebec (notably
the aected indigenous people, the Cree). At the time the case was heard, the Cree
did not possess a distinct right to self-determination.191 Nevertheless, the potential
impact that the secession would have had on their collective rights enabled them to
undermine the Quebecois claim signicantly at a political level.192
The absence of eective governance by the Pristina authorities in Northern Koso-
vo and the lack of a meaningful minority rights regime could enable ethnic Serbs to
make legitimate claims for territorial adjustments at certain points on the border
between Kosovo and Serbia. If, as it appears, the case for recognising the Kosovo
Albanians right to self-determination/secession is stronger than the Quebecois liti-
gated claim then the impact that the exercise of such a right would have on other
societal groups must be carefully assessed and possible solutions should be found.
It is suggested that recognition of the incompatibility of the rights of the Kosovo
Albanians and the ethnic Serbs in Northern Kosovo would strengthen the case for
territorial/boundary revisions.
Alternatively, if it is accepted that Kosovos status remains in ux and that the
territorial unit remains part of Serbia (however notional that conclusion is) then the
Kosovo Albanians claim to remedial self-determination/secession may allow them
to create a new self-determining unit (the State of Kosovo). However, at the same
time, the territorially compact ethnic Serb group in Northern Kosovo should be
international treaty and therefore Article of the Vienna Convention on Succession of

States in respect of Treaties has no application.
It is still at best arguable that indigenous peoples possess the right to self-determination
as a matter of international law.
See Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge:
Cambridge University Press, ), -.
entitled to remain within the wider established self-determination unit (the State
of Serbia). The former remedial act would be an act of external self-determination
while the latter would constitute an act of internal self-determination. In this re-
spect, the two forms of self-determination could interact for the benet of the af-
fected populations and in the interests of regional stability.
6 The Scope for Territorial Adjustment/Boundary Revision in

Northern Kosovo
The rst section of this essay showed that UNMIKs governance in Northern Koso-
vo has been less then eective despite its ongoing security presence. The extent to
which localised ethnic conict can be managed via an eective minority rights re-
gime is highly questionable, given recent history.193 Against this background, the
ethnic demography of those areas adjacent to the Kosovo-Serbia order cannot be
ignored. Ethnic Serbs form the majority of the population in the Northern munici-
palities of Mitrovica, Leposaviq, Zubin Potok and Zvecan; and ethnic Albanians are
the predominant ethnic group in the Presevo Valley in Southern Serbia, adjacent to
Kosovo. Demands for territorial repatriation are currently being made by the popu-
lations on either side of the Kosovo-Serbia border. The existence of border enclaves
in these areas has created the possibility for Kosovo and Serbia to negotiate ter-
ritorial/boundary revisions which could ameliorate wider ethnic tensions and thus
contribute to the resolution of the problem of Kosovos status.
Questions concerning Kosovos territorial integrity were excluded from the Con-
tact Groups Guiding Principles, which formed the basis of international communi-
tys negotiations with Belgrade and Pristina concerning Kosovos status.194 However,
in 2007, the Troika negotiators did raise the possibility of exchanges of territory on
the Kosovo-Serbia border as a means of contributing to the resolution of the sover-
eignty problem but neither Belgrade nor Pristina were prepared to relinquish their
zero-sum game.195 Arguably, the position is dierent now. Kosovo needs to promote
the legitimacy of its claim to statehood and Serbia must be concerned about the
protection aorded to ethnic Serbs in Kosovo. Further, the international community
must nd a way of securing peace and stability within this troubled region. In such
Chapter of the UNMIK Constitutional Framework for Provisional Self-Government

() addressed the question of a minority rights regime for Kosovo. The Ahtisaari
Plan, which formed part of the constitutional framework of independence, also ad-
dressed the issue of community rights.
Guiding Principles of the Contact Group for a Settlement of the Status of Kosovo,
October , UN Oce of the Special Envoy for Kosovo. Accessed June . http://
www.unosek.org/docref/ContactGroup-TenGuidingprinciples
forAhtisaari.pdf.
While it was broached, we did not dwell on the option of territorial partition, which
was deemed unacceptable by both of the parties and the Contract Group, (para. ). See
Report of the Troika (EU/USA/Russia) on Kosovo, December , International Cri-
sis Group. Accessed June . http://www.swp-berlin.org/transfer/kosovo/troikare-
port.htm.
circumstances, it seems that a negotiated settlement is the only way of addressing

the complexities of the Kosovo Question. While Kosovos 2008 Declaration of In-
dependence and the willingness of 72 States to recognise the State of Kosovo may
have altered the balance of power in Pristinas favour these facts are certainly not
dispositive.
The possibility of territorial exchanges between Kosovo and Serbia has been unof-
cially recognised by politicians on either side of the border and it has been identi-
ed as a plausible solution in the international media. 196 Nevertheless, the prospect
of territorial revision along parts of the Kosovo/Serbia border carries with it the
danger that demands for revision will spread throughout the Balkans, with poten-
tially disastrous consequences for other trouble spots, such as the ethnic Albanian
enclave in Tetevo (Macedonia) which borders on to Southern Kosovo. In anticipa-
tion of such demands the exceptional nature of the situation in Northern Kosovo
could be emphasised (the governance problem in that area and the wider issue of
Kosovos international status) in order to justify territorial exchanges between Koso-
vo and Serbia. The disruptive ethnic violence which took hold in Tetevo in 2001 did
not manifest these exceptional characteristics.197 Of course, if territorial exchanges
in parts of the Kosovo/Serbia border were agreed by Pristina and Belgrade, ethnic
Albanians in Tetevo would probably view such an event as an analogous instance
of ethnic separatism that could underpin their claims for Tetevo to be excised from
Macedonia and incorporated within Kosovo. The potential for ethnically inspired
demands for territorial revision troubles international actors engaged in the Kosovo
Question and it explains their unwillingness to countenance boundary revision in
any part of Kosovo.
Territorial exchanges between Kosovo and Serbia could compound one of the
most disturbing features of the Kosovo Question, its precedential value. Many of the
States that have recognised Kosovo have stressed the exceptional reasons which jus-
tify Kosovos claim to statehood. In so doing, they have denied its precedential value
for other challenged ethnic groups.198 However, it has been widely acknowledged
that attempts to put Kosovos claim to statehood beyond comparison are doomed to
fail, such is the power of analogy in international legal and political reasoning.199Any
perceived regional entitlement to territorial/boundary revisions along ethnic lines
could further complicate and enlarge the Kosovo Precedent which has already chal-
lenged international law on two fronts (the lawfulness military intervention in an in-
ternal conict and the legality of unilateral secession).200 To add another dimension
For instance, see articles in The Economist, November , ; and June , .

See Congress Research Service Report for US Congress: Macedonia: Country Back-
ground and Recent Conict ().
See generally Warbrick, note above.
See Rein Mullerson, Precedents in the Mountains: On the Parallels and Uniqueness
of the Cases of Kosovo, South Ossetia and Abkhazia, Chinese Journal of International
Law (): .
See Martti Koskenniemi, The Lady Doth Protest Too Much Kosovo, and the Turn to
Ethics in International Law, Modern Law Review (): .
might be too much to bear for an international community which has been sorely
tested by events in this region. However, the same community has been prepared to
stretch the corpus of international law on two previous occasions in order to address
the problems confronted by the Kosovo Albanians. It may well be that the interna-
tional community will have to accept that an exceptional approach is once again
justied, if the ultimate aim of resolving the Kosovo Question is ever to be achieved.
Territorial revision is clearly a high-risk political strategy but it may be the best
way of resolving the seemingly intractable Kosovo Question in the longer run. It
is suggested that uti possidetis could provide a useful legal criterion to inform any
such process of revision. However, this presupposes that international law has the
capacity to inuence the outcomes of a territorial/boundary dispute driven by pow-
erful real-politik considerations. Ratner has argued that international law has a role
to play during negotiations concerning territorial/boundary disputes. He claims
that it, may represent a sort of fact on the ground that neither party can ignore.201
Moreover, he believes that it can identify a range of substantive solutions (and it can
invalidate others).202
Clearly, international law can shape the range of options available to governments
when they consider their standpoints on various issues from within. In particular,
judicial decisions play an important role in determining international law, especially
in the context of territorial/boundary disputes.203 However, Ratner draws a distinc-
tion between judicial and arbitral decisions. In his view, the latter are examples of
delegated decision-making.204 While this distinction ignores the fact that even the
ICJ does not possess plenary authority there is some justication for it since the
task of an arbitral panel often manifests a political dimension. In Ratners words,
political arbitration allows a panel the freedom to balance interests rather than ap-
ply legal rules.205 This might be over emphasizing the political nature of arbitral
decision-making rather than the political conditions in which arbitral panels oper-
ate. Arbitral panels do strive to apply legal rules; however, there is often a degree of
exibility in their decision-making that is rarely apparent, for instance, in the deci-
sions of the ICJ.
Important arbitral decisions have disregarded the uti possidetis line in favour of
more exible principles in an eort to establish a just and equitable boundary. These
cases could be used to demonstrate the potential signicance of uti possidetis in any
negotiations entered into between Kosovo and Serbia concerning the position of
their common boundary in certain areas. The next subsection focuses on two cases
that could guide Kosovo and Serbia in this respect.
Steven R. Ratner, Land Feuds and Their Solutions: Finding International Law Beyond
the Tribunal Chamber, American Journal of International Law (): .
Ibid. -.
The classical example is the Island of Palmas Case, Reports of International Arbitral
Awards (): .
Ratner, note above, .
Ibid. .
a The Honduras Borders Case

The Special Agreement concluded between Guatemala and Honduras for the pur-
pose of arbitrating their territorial/boundary dispute, gave the Tribunal consider-
able scope to nalise the common frontier in the disputed regions. Specically, Ar-
ticle 5 provided:
The High Contracting Parties are agreed that the only line that can be established de jure
between their respective countries is that of the Uti Possidetis of 1821. Consequently it is
for the Tribunal to determine this line. If the Tribunal nds that either Party has during
its subsequent development acquired beyond this line interests which must be taken into
consideration in establishing the nal frontier, it shall modify as it may consider suitable
the line of the Uti Possidetis of 1821 and shall x such territorial or other compensation as
it may deem equitable for one Party to pay to the other.206
In the light of this provision, the Tribunal ruled that:
The Treaty cannot be construed as authorizing the Tribunal to establish a denitive

boundary according to an idealistic conception, without regard to the settlement of the
territory and existing equities created by the enterprise of the respective Parties. So far as
may be found to be consistent with these equities, the geographical features of the terri-
tory indicating natural boundaries may be considered.207
This case is signicant for the present purpose for a number of reasons. Although
the parties were anxious to resolve their territorial dispute by reference to legal prin-
ciple, they were prepared to authorise the Tribunal to supersede the uti possidetis
line in areas where exceptional reasons justied such a course of action. Uti posside-
tis therefore provided the general basis for determining the frontier but the Tribunal
was licensed to apply ex aequo et bono as well as equity infra legum in appropriate
situations. The case also illustrates the presumptive nature of uti possidetis and thus
the continuing importance of maintaining the distinction between this principle
and the inviolable principle of territorial integrity, as discussed in section 4.
There are signicant dierences between the Honduras Borders Case and the
Kosovo-Serbia border problem discussed in this essay. First, in most of the cases
where the principle of uti possidetis is invoked the problem lies in identifying the
precise location of a common frontier due to a lack of cogent evidence. In contrast,
in Kosovo, the territorial parameters of the former SFRY entity are well-known and
clearly demarcated. Accordingly, in the present situation, the issue is about the vi-
ability of the administrative delimitations acquired at the moment of independence
rather than their exact whereabouts. Further, it clear is that evidential diculties
The Honduras Borders Case (Guatemala/Honduras), Reports of International Arbitral

Awards (): , .
Ibid. .
were the main cause of the territorial dispute addressed in the Honduras Borders
Case. Nevertheless, as noted above, under the Special Agreement, the Tribunal was
authorised to disregard the uti possidetis line in the interests of justice and equity
where it was appropriate to do so and the Tribunal did rely upon other sources in
certain disputed sectors. In the circumstances, it would be inaccurate to suggest
that the Honduras Borders Case is authority for the proposition that the principle of
uti possidetis can only be superseded where the uti possidetis line is unreliable for
evidential reasons.
Second, the Tribunal was required to assess the implications of developments
aecting the common frontier occurring over a period in excess of one hundred
years after independence had been achieved. In contrast, in Kosovo, arguments for
territorial adjustments/boundary revision are based on the presence of enclaves that
existed before Kosovos Declaration of Independence.208 In this context, the argu-
ment would be for the international boundary to reect the current realities at the
time of independence rather than at a later stage.
While the temporal element is materially dierent from the one apparent in the
Honduras Borders Case there are good reasons for making a wider comparison be-
tween the two cases. The decolonisation of Latin America occurred long before self-
determination had crystallised as an entitlement in international law.209 This fact
is particularly important in the context of the Kosovo Question which appears to
centre on countervailing claims of self-determination (remedial self-determination/
secession on the part of the Kosovo Albanians versus internal self-determination
on the part of ethnic Serbs of Northern Kosovo). Second, the governance problem
in Northern Kosovo and the ethnic tensions which underlie it highlight the practi-
cal implications of the Kosovo Question demonstrate the desirability of reaching a
negotiated settlement. It is suggested that a process of territorial adjustment/bound-
ary revision by reference to established legal criteria represents an appropriate way
forward in the circumstances.
By harnessing the normative essence of the Honduras Borders Case it can be ar-
gued that the general application of uti possidetis ensures that the administrative
lines which delimited the former SFRY autonomous entity of Kosovo should be pre-
sumptively constitute the international boundaries of the State of Kosovo. However,
where there are exceptional reasons, the uti possidetis line can be varied by negotia-
tion to reect the interests of the parties thereby justifying a process of bound-
ary revision/territorial adjustment in Northern Kosovo and in the Presevo Valley
in Southern Serbia. Such a settlement would involve considerable political will and
would inevitably be a highly technical and complex exercise. The present essay is not
suggesting that the common boundary should merely be drawn to reect the terri-
tory or territories currently eectively controlled by the ethnic Serbs in Northern
Kosovo or by ethnic Albanians in the Presevo Valley in Serbia. Instead it is identify-
Although the size and signicance of such enclaves increased after the SFRYs collapse
they were established long before that event.
See Franck, note above, .
ing the availability of legal criteria which can inform and guide political negotiations
directed towards settling the Kosovo Question.
What factors could inform the drawing of a common frontier between Kosovo
and Serbia? When the Tribunal in the Honduras Borders Case experienced di-
culty in establishing the uti possidetis line in certain parts of the common frontier
it relied upon evidence of actual occupation as evidenced by: an amalgam of State
interests derived from both private and public activity both of central and local gov-
ernment organs and of nationals settling or exploiting a disputed area.210 While
such an approach may be appropriate in many situations, the adoption of the test
of eective control approach would be problematic in the Kosovo-Serbia context
given the extent to which ethnic violence and programmes of involuntary displace-
ment have shaped the enclaves in question. It is not being suggested here that the
straightforward exchange of territory will produce a just and stable frontier between
the two States. Clearly a more creative and nuanced approach will be required if an
enduring international boundary is to be established. Accordingly, the concept of
equity must be revisited and it must be interpreted in a manner that is consistent
with contemporary entitlements to self-determination (while bearing in mind the
relatively modest scope for territorial adjustment permitted by uti possidetis pre-
sumptive nature). In the circumstances, analysis undertaken by the arbitral panel in
the Brcko Corridor Case may be instructive.
b The Brcko Corridor Case

This case concerned a territorial dispute within the State of Bosnia-Herzegovina be-
tween the Republika Srpska and the Federation of Bosnia-Herzegovina concerning
the inter-entity boundary in the area of Brcko.211 Srpska controlled the area in ques-
tion. It argued that the Brcko provided a vital corridor between the two halves of its
territory. In contrast, the Federation claimed that such a result would restrict access
to Europe and would impede its economic development. The dispute was referred to
an arbitral tribunal under the terms of the Dayton Accords.212
The Tribunal noted that the ethnic hostilities in Brcko were so entrenched that
the mediators at the Dayton Conference were unable to resolve them. As a result,
ethnic separatism endured in this area. Against this background, it ruled that, rel-
evant legal principles do not require that award of the area in dispute to one party or
the other.213 Further, it observed: that any simple solution must be rejected in fa-
vour of an approach that is consistent with law and equity and is designed to relieve
the underlying tensions and lead to a stable and harmonious solution.214
See Munkman, note above, .

December , International Legal Materials (): .
Brcko Corridor Case, note above, para .
Ibid. para .
The Tribunal was empowered to decide this case by reference to, relevant legal
and equitable principles.215 It considered the available scope for relying upon equity
in the context of territorial disputes.216 It concluded that equitable principles neces-
sitated the rendering of an award which would give eect to considerations of fair-
ness, justice and reasonableness.217 In this regard, the Tribunal relied upon the view
expressed by Judge Arechaga in the Continental Shelf (Tunisia/Libya) Case:
the judicial application of equitable principles means that a court should render justice in
the concrete case, by means of a decision shaped by and adjusted to the relevant factual
matrix of that case. Equity is here nothing more than the taking into account of complex
historical and geographical circumstances the consideration of which does not diminish
justice but, on the contrary, enriches it.218
In addition, the Tribunal recognised the need to produce an equitable result. In this
respect, it again drew upon the ICJs reasoning in the Tunisia/Libya Case:
The equitableness of a principle must be assessed in the light of its usefulness for the
purpose of arriving at an equitable result. It is not every such principle which is in itself
equitable; it may acquire this quality by reference to the equitableness of the solution. The
principles to be indicated by the Court have to be selected according to their appropri-
ateness for reaching an equitable result. From this consideration it follows that the term
equitable principles cannot be interpreted in the abstract; it refers back to the principles
and rules which may be appropriate in order to achieve an equitable result.219
In its Award, the Tribunal identied the need to implement the Dayton Accords in
the area of nature of uti possidetis can allow for the application of equitable consid-
erations in Brcko. It sought to combine the relevant sources of international law (the
Dayton Accords and the ICJ decisions concerned with equity) to justify the tempo-
rary administration of Brcko and its surrounding area by international authorities.220
The Brcko Corridor Case shows how an arbitral panel can endeavour to resolve
a territorial/boundary dispute by using equitable principles creatively to nd a just
solution. Although this case did not involve an international boundary the nature
of the boundary in question is analogous for the purpose of applying the principle of
Article of Annex .
See note above, .
Ibid.
ICJ ( February) (Arechaga J., Separate Opinion), quoted, ibid. -.
Ibid. .
See Ratner, note above, -. In particular, the Tribunal called upon the Oce
of the High Representative for Bosnia-Herzegovina to develop measures to implement
the Accords and to strengthen local democratic institutions in the area in question.
Further, the Tribunal mandated that the various policing agencies should co-ordinate
to ensure freedom of movement through the Brcko corridor in the interests of all the
citizens of Bosnia-Herzegovina.
uti possidetis. The case, therefore, adds weight to the Honduras Borders Case, which
demonstrated that the presumptive appropriate cases.
Even formal judicial bodies, such as the ICJ, are not unmoved by the social and
political consequences that ow from territorial/boundary disputes. In the Camer-
oon/Nigeria Case, the ICJ refused to adjust the common frontier in order to reect
population shifts across it in areas where there was an established boundary.221 Nev-
ertheless, it recognised that, instead it is up to the Parties to nd a solution to any
resultant problems, with a view to respecting the rights and interests of the local
population.222 Modest adjustments determined by the court elsewhere in the land
boundary meant that small Nigerian populations were transferred to Cameroonian
sovereignty. However, the court urged the parties, to cooperate in the interests of
the population concerned, in order notably to enable it to continue to have access
to educational and health services comparable to those it currently enjoys.223 While
the ICJ declined to substantially revise the boundary in order to reect social reality
in this case it was mindful of the implications of its ruling for the aected popula-
tions and it took steps to minimise them.
The judicial model is not well-placed to determine those territorial/boundary
disputes which are essentially political in character. Arguably, forms of political ar-
bitration are better suited to achieving an equitable result in such cases. However,
arbitral panels still operate within formal legal frameworks and they require the
parties to agree to such a method of dispute resolution in the rst place. It is high-
ly unlikely that Kosovo and Serbia will allow a court or tribunal to establish their
common boundary as the position of the boundary between them is too politically
charged. It is more probable that Pristina and Belgrade would negotiate on this issue
directly (with the assistance of political mediators). Nevertheless, international law
could form part of the framework for any such negotiations and that the cases and
principles discussed in this essay could help to shape their outcome.
7 Conclusion
The principles of uti possidetis and self-determination were used by the Badinter
Committee and the EC to justify the claims to independent statehood made by the
SFRYs constituent republics in 1991-2. Kosovos claim was ignored because it was
not the beneciary of the right of self-determination according to the SFRYs 1974
Constitution. However, the violent repression of Kosovo Albanians conducted and
sponsored by Serbia during the 1990s and the subsequent NATO and UN interven-
tion has resulted in a material change of circumstances which has led to a re-evalu-
Land and Maritime Boundary (Cameroon/Nigeria) Case, ICJ ( October).

The Cameroonian village of Turu had spread into Nigerian territory and Nigerian vil-
lage had spread into Cameroonian territory. See Malcolm N. Shaw, Introduction: The
International Law of Territory: An Overview, in Title to Territory ed. Malcolm N. Shaw
(Dartmouth: Ashgate, ), xi, xxix.
Cameroon/Nigeria Case, ibid. para .
Ibid. para .
ation of Kosovos current status. Kosovos Declaration of Independence has attracted

considerable support from the international community. The claim to independence
is largely grounded in the right to remedial self-determination/secession. However,
if the Kosovo Albanians right to self-determination is now widely recognised by the
international community, it follows that uti possidetis is germane too since it identi-
es the territorial unit which is entitled to accede to independence in the same way
that it was applied by the Badinter Committee to the SFRYs republics in 1991/2. The
continuity of the former SFRYs territorial framework in relation to Kosovo was pre-
supposed in UN Security Council Resolution 1244 (1999) and UNMIKs Constitu-
tional Framework for Provisional Self-Government (2001). Accordingly, if Kosovos
claim to independence is widely recognised, then these sources can be used to sub-
stantiate the claim that the new State has succeeded to the territory of the former
SFRY autonomous entity of Kosovo.
In such circumstances, the principle of uti posseditis would appear to ensure
that the international boundaries of the new State correspond to the administrative
delimitations which existed at the moment of independence. However, this essay
showed that uti possidetis gives rise to a presumption in favour of the continuity of
territorial frameworks existing on independence and that it is distinguishable from
the principle of the inviolability of frontiers which protects the territorial integrity
of established States. This distinction cautions against the simple transformation of
internal administrative delimitations into international boundaries where there are
exceptional reasons to engage in processes of territorial/boundary revision.
This chapter identied and discussed the governance problem in Northern Koso-
vo, the product of ethnic tensions between Kosovo Albanians and ethnic Serbs in
this area. Given the enduring nature of this problem, the essay posited whether this
was a situation in which the presumption in favour of the territorial status quo could
be rebutted in order to permit modest territorial revisions in the border region of
Northern Kosovo. It must be conceded that, ocially, neither Pristina nor Belgrade
has found the prospect of territorial revision appealing. Belgrade maintains its claim
to the whole of Kosovo, while Pristina claims to have succeeded to the territory of
the former SFRY autonomous entity of Kosovo. However, the possibility of a pro-
cess of territorial exchange (parts of Northern Kosovo to Serbia in exchange for the
Presevo Valley to Kosovo) has been unocially mooted by interested politicians.
The outcome of the ICJs Advisory Opinion is unlikely to resolve the matter to the
satisfaction of either side. It may well prompt them to return to the negotiating table
whereupon the question of such exchanges may come to the foreground, strength-
ening the potential use of uti possidetis as a means by which progress can be made.
The principle of uti possidetis could establish the international boundaries of
much of Kosovo. Nevertheless, the essay showed that the territorial status quo could
be varied in by agreement in the areas of Northern Kosovo and Southern Serbia
(Presevo Valley) in the interests of regional stability. There is scope for Kosovo and
Serbia to negotiate a revised territorial/boundary regime in these areas by reference
to existing principles of international law (specically, the interplay between the
principles of self-determination and uti possidetis) and that any agreement which
may result from such negotiations could have positive consequences for the resolu-
tion of the wider Kosovo Question.
IV.
Implications of Kosovo as a
Precedent for Other Regions
Chapter 11 Is Kosovo and Metohija Indeed a
Unique Case?
MIODRAG A. JOVANOVI*
1 Introduction
Ever since the end of the NATO military intervention in Serbia, Kosovo and Meto-
hija1 (Kosovo) has become a passionately debated topic in various international
conferences and in numerous journals dedicated to the problem areas of political
theory and philosophy, ethics, international law and international relations. The
complexity of the case has very often prompted participants in the debate to cross
the borders of their own disciplines and to resort to methods and arguments of the
neighboring academic elds. This particularly holds for international legal scholars,
who in grounding their positions routinely relied on arguments from just war theo-
ries, political theories of secession or general ethics. Koskenniemi, thus, argues that:
Kosovo has invited international lawyers to throw away dry professionalism and
imagine themselves as moral agents in a mission civilicatrice. A particularly shallow
and dangerous moralisation that forecloses political energies needed for transfor-
mation elsewhere. After admitting that he also found himself in the ambivalent
position, in holding that the military intervention was both formally illegal and
morally necessary, Koskenniemi concludes that: Kosovo has come to be a debate
about ourselves, about what we hold as normal and what exceptional, and through
that fact, about what sort of international law we practice.2
In that respect, it seems that the stakes for international legal scholars are higher
than ever, particularly after the highly controversial advisory opinion of the Inter-
national Court of Justice. In this opinion, the Court narrowly conned itself to an-
swering the question submitted to it by the UN General Assembly: Is the unilateral
declaration of independence by the Provisional Institutions of Self-Government of
* This chapter is based on the presentation that was delivered at the international con-
ference Kosovo and Metohija as a Global Problem, which took place from to
November at the Faculty of Law, University of Belgrade.
This is the ocial name of the province in the Constitution of the Republic of Serbia.
Martti Koskenniemi, The Lady Doth Protest Too Much Kosovo, and the Turn to
Ethics in International Law, Modern Law Review (): .
346 IV. Implications of Kosovo as a Precedent for Other Regions
Kosovo in accordance with international law?3 While deciding, by ten votes to four,
that the declaration of independence of Kosovo adopted on 17 February 2008 did
not violate international law, the Court explicitly stated in a number of places what
it was not asked and, hence, what it was not required to address in its opinion. The
Court says that the submitted question: does not ask about the legal consequences
of that declaration. In particular, it does not ask whether or not Kosovo has achieved
statehood. Nor does it ask about the validity or legal eects of the recognition of
Kosovo by those States which have recognized it as an independent State.4 Con-
sequently: The Court is not required by the question it has been asked to take a
position on whether international law conferred a positive entitlement on Kosovo
unilaterally to declare its independence or, a fortiori, on whether international law
generally confers an entitlement on entities situated within a State unilaterally to
break away from it. Moreover: it is entirely possible for a particular act such as a
unilateral declaration of independence not to be in violation of international law
without necessarily constituting the exercise of a right conferred by it. The Court has
been asked for an opinion on the rst point, not the second.5 Finally, the Court spe-
cically underlines that the questions, as to whether Kosovo has the right to separate
statehood in accordance with international law on self-determination or as a form
of remedial secession, go beyond the scope of the question posed by the General
Assembly.6
For the moment, almost a month and half after the issuance of the Opinion, it
seems that this vague stance of the Court did not manage to change much in the
political attitudes toward the Kosovo case. Staunch supporters of both Serbian terri-
torial integrity and Kosovo independence stayed entrenched in their prior positions.
Hence, the former camp remained faithful to the claim that the Kosovo indepen-
dence might create a dangerous precedent for a number of similar cases, whereas
the latter camp continued advancing the thesis that the Kosovo case necessitated a
unique, or sui generis, legal solution, and that, being unique, it could not aect any
other case around the globe. For instance, German foreign Minister, Westerwelle,
during his visit to Greek Cyprus, immediately after the Courts ruling, stated that
this opinion does not apply to Cyprus or other countries. The decision has nothing
to do with any other cases in the world, because, this is a very specic case and
it is a unique decision concerning a specic historic situation.7 In a similar fash-
ion, Kosovos representative in the post-Opinion discussion before the UN Security
UN Doc. A//L. .
Respect of Kosovo, (Advisory Opinion), ICJ para. ( July ).
Ibid. para. .
Ibid. para. .
Germany assuages Greek Cypriot fears over Kosovo Ruling, Accessed September
. http://www.todayszaman.com/tz-web/news---germany-assuages-greek-
cypriot-fears-over-kosovo-ruling.html.
Chapter 11, Miodrag A. Jovanovi Is Kosovo and Metohija Indeed a Unique Case? 347
Council, stressed that Kosovos independence has not set any precedent, and that
it is, a special case.8
The purpose of this contribution is to scrutinize the unique case thesis, by in-
vestigating the factual and legal arguments given in its favor. The reason for this
endeavor lies in the obvious fact that, depending on the sustainability of this thesis,
legal and political implications for some actual or future cases might signicantly
dier. While concentrating on the sustainability of the unique case thesis, I will not
embark upon the detailed analysis of all the plausible implications of the adoption
or rejection of such a thesis. Such an analysis would obviously require a separate
investigation.
2 The Structure of the Unique Case Thesis

The unique case thesis with regard to the Kosovo case can be traced as early as in
the phase of the preparation of the NATO military intervention. This thesis was
used as a part of the persuasion strategy taken by political and military leaders of the
Alliances members. Hence, the then German Foreign Minister, Kinkel, was report-
ed as saying before the Bundestag that: [t]he decision of NATO must not become a
precedent. As far as the Security Council monopoly on force is concerned, we must
avoid getting on a slippery slope.9
This rhetoric was resurrected and vehemently employed in the period preceding
the unilateral declaration of independence by provisional institutions of Kosovo. It
turned out to be an argumentative technique that paved the way for the subsequent
political decision: the prompt recognition of the new state by major Western pow-
ers. One of the paradigmatic uses of the unique case thesis from that period can be
found in the fervent proclamation of ten former foreign ministers, Kosovo must be
Independent, which was published in June 2007. In one of the sentences, it is said:
Kosovo is a unique situation that has required a creative solution. It should not cre-
ate a precedent for other unresolved conicts.10 The European Unions representa-
tives, for their part, repeated on more than one occasion that the basis for solving the
Kosovo and Serbia clash at UN over Independence. Accessed September . http://

thestar.com.my/news/story.asp? le=////apworld/&sec=apworld.
This curious, self-restrained, this-time-only military excuse for acting outside of the
existing international legal framework is discussed at length by Simma, who eventually
legitimizes this move, by arguing that, the Alliance made every eort to get as close to
legality as possible, and that, only a thin red light separates NATOs action on Kosovo
from international legality. Bruno Simma, NATO, the UN and the Use of Force: Legal
Aspects, European Journal of International Law (): . For the further extension
of this position, see in the same journal issue, Antonio Cassese, Ex iniuria ius oritur:
Are We Moving towards International Legitimation of Forcible Humanitarian Coun-
termeasures in the World Community? ibid. -.
Among the ministers are some of the main advocates of NATOs bombing of Serbia,
such as Madeleine Albright (USA), Joshka Fischer (Germany), Helveg Petersen (Den-
mark) and Hubert Vedrine (France). Kosovo must be independent, International Her-
ald Tribune, June .
Kosovo case were the principles and the framework for talks set up by the Contact
Group. There, it is stated that the Kosovo case is unique, so it cannot serve as a
precedent for any other situation.11
Finally, the unique case thesis was tacitly expressed in certain declarations of
recognition of Kosovo. Illustrative in that respect is the following statement of the
then US Secretary of State, Condoleezza Rice: The unusual combination of factors
found in the Kosovo situation including the context of Yugoslavias breakup, the
history of ethnic cleansing and crimes against civilians in Kosovo, and the extended
period of UN administration are not found elsewhere and therefore make Kosovo
a special case. Kosovo cannot be seen as a precedent for any other situation in the
world today.12 When soon after asked to draw the parallel between the situation in
the Balkans and Caucasus, she repeated that they have nothing in common: I dont
want to try to judge the motives, but weve been very clear that Kosovo is sui generis
and that that is because of the special circumstances out of which the breakup of
Yugoslavia came.13
When all statements of this sort considered, and they were further elaborated in
some written submissions to and oral proceedings before the Court, one may notice
that there are four main arguments for advancing the unique case thesis:
1. Kosovos independence is the nal stage of the break-up of the former Yugosla-
via (The End of Break-Up Argument);
2. The Kosovo Albanian ethnic minority was subjected to the protracted institu-
tional discrimination and exclusion and the gross human rights violations by
the central government (The Human Rights Violation Argument);
3. In order to stop the humanitarian catastrophe, NATO was forced to undertake
an unprecedented humanitarian intervention (The Humanitarian Intervention
Argument);
4. The UN post-conict involvement was immense and unparalleled, since the
province was, both in civil and military terms, for nine years administered by
the UN (The Immense UN Involvement Argument);
In the remainder of this chapter I will demonstrate that neither of these four argu-
ments, which constitute the substance of the unique case thesis can be sustained,
either because a) they are grounded in dubious facts, or b) they rest on the unsub-
stantiated legal analysis, or c) they tend to neglect essentially similar cases that led
to diametrically dierent legal outcomes.
Statement by Krisztina Nagy, spokesperson for European Commissioner Olli Rehn,

October . Yet, as it is well known, not all EU Member States have recognized Kos-
ovos independence.
Statement by Secretary of State, Condoleezza Rice, US Recognizes Kosovo as Inde-
pendent State, US Department of State Press Statement No. /, February
. Accessed September . www.state.gov/secretary/rm///.htm.
Brieng by Secretary Rice en route to Brussels, Belgium, March . Accessed
September . www.usembassy.org.uk/forpo/html.
3 The End of Break-Up Argument

The argument that uniqueness of the Kosovo case stems from the specic con-
text of the dissolution of the former Yugoslavia is often coupled with the claim that
Kosovo Albanians were victims of continuous discrimination and human rights vio-
lations by the Serbian state. Consequently, for the purposes of this analysis, The End
of Break-Up Argument has to be narrowly construed in order to be distinguishable
from The Human Rights Violation Argument. This distinction is, nonetheless, pos-
sible, insofar as these arguments largely target dierent periods of recent history. In
that respect, the former argument has to be closely tied to the Badinter Commis-
sions ndings regarding the process of break-up of the Socialist Federal Republic
of Yugoslavia. In its Opinion No. 1, issued on 29 November 1991, the Commission
stated that the SFRY was in the process of dissolution,14 while in the Opinion No.
8, issued on 4 July 1992, it concluded that this process is now complete and that the
SFRY no longer exists.15 Accordingly, The End of Break-Up Argument is limited to
the period until mid-1992. As for The Human Rights Violation Argument, it is com-
monly employed to cover the period that had started with the process of constitu-
tional transformation of the province within Serbia in 1989 and ended up with the
NATO military intervention in 1999. Hence, even though there is an overlapping
period of time, The Human Rights Violation Argument can obviously be treated as
the separate one.
In the support of the thesis that Kosovo is a unique case, The End of Break-Up
Argument was already used in the proposal of the UN Secretary-General Special En-
voy, Mr. Martti Ahtisaari. On 26 March 2007, he submitted his report on Kosovos
future status and the Comprehensive Proposal for the Kosovo Status Settlement.16
In arguing that independence, which will at the beginning be supervised by the in-
ternational community, is the only viable option for Kosovo, the report inter alia
explained the proposed outcome as the last episode in the dissolution of the former
Yugoslavia.17 This argument was replicated in the Unilateral Declaration of Inde-
pendence by Kosovos provisional institutions, where it was stated that secession of
the province brings to an end the process of Yugoslavias violent dissolution.18
Finally, as previously noticed, the same argument was used in certain declara-
tions about Kosovos recognition and it was more substantially elaborated in a num-
ber of written statements submitted to the Court, as well as in some presentations
during oral hearings. Two former Yugoslav republics, Slovenia and Croatia, particu-
Allain Pellet, Appendix: Opinions of the Arbitration Committee, European Journal of

International Law (): (Opinion No. ).
Danilo Trk,Annex : Opinions No. - of the Arbitration Commission of the Inter-
national Conference on Yugoslavia, European Journal of International Law ():
(Opinion No. ).
UN Doc. S///Add. ( March ).
Ibid. para. .
Written contribution of the authors of the unilateral declaration of independence, An-
nex , Declaration of Independence for Kosovo, , para. ,
larly relied on this argument for backing up the thesis that Kosovo was a unique
case, whose nal status had to be the one of an independent state. The Croatian
representative before the Court stressed, that Kosovo possessed strong elements of
statehood within the SFRY.19 She supported this thesis by quoting President Mesis
newspaper article in which he summarized the legal status of republics and prov-
inces in the former federation in the following way:
Firstly Yugoslavia consisted of republics and provinces, so provinces were the constit-
uent elements of the Federation. Secondly the provinces were parts of Serbia, which
meant that in addition to having constituent ties with the Federation - they were also
linked with one of its federal units. Th irdly the republics and provinces had united of
their own free will to form Yugoslavia, from which it is to be concluded that they cannot
be retained against their will within this state framework. In the case of provinces, this
relates to both the framework of the Federation and the framework of the federal unit.
And fourthly and nally citizens, i.e., nations and nationalities in the provinces, exercise
their sovereign rights.20
Authors of the Written Comments of the Republic of Slovenia thoroughly expli-

cate the legal status of provinces in order to demonstrate that, [t]he issue of the
unilateral declaration of independence of Kosovo could ... not be entirely separated
from the dissolution of the former SFRY.21 The central thesis of their contribution
is that, [t]he status of the autonomous provinces was unusual in that it had a dual
character. On the one hand, the autonomous provinces were federal units within
the SFRY and, on the other hand, they were autonomous units within the Republic
of Serbia.22 Authors acknowledge the formal dierence between republics and au-
tonomous provinces, which stemmed from certain explicit provisions of the 1974
SFRY Constitution (e.g. under-representation in the legislative federal body), and yet
they argue that, the autonomous provinces were de facto constitutive elements of
the Federation.23
Verbatim Record, Monday December , CR /, .

Ibid. Interestingly enough, the US written statement also quotes this article (Stjepan
Mesi, Kosovo - problem koji ne trpi odgaanje [Kosovo A Problem that Tolerates
No Delay], Veernji list, February , as an ultimate legal authority for the clarica-
tion of the constitutional status of dierent members of the Yugoslav federation. Hence,
the American experts come up with the conclusion that, while still a part of Serbia, af-
ter Kosovo was acknowledged to possess sovereign right and to have joined Serbia
and Yugoslavia of its own volition. Written Submission of the United States of America,
April , .
Written Statement of Slovenia, April , , footnote .
Ibid. (emphasis mine).
Therefore, on the basis of the SFRY Constitution, the Yugoslav Federation consisted of
eight federal units: six republics and two autonomous provinces. Ibid. . The status of
the autonomous provinces under the SFRY Constitution was in several ways equal
to the status of the republics. The autonomy possessed by the autonomous provinces
Both states emphasize that, under the 1974 Federal Constitution, the Autono-
mous Province of Kosovo was vested with the right to its own Constitution, leg-
islative power, presidency, constitutional and supreme court. This leads the Croa-
tian representative to conclude, that Kosovo as an autonomous province enjoyed
a status that was largely equal [emphasis mine] with that of the republics in this
Federation.24 Once Kosovo was stripped of these competences, through the pro-
cess of constitutional changes in Serbia (1989-1990), which are in the submissions
characterized as contrary to the 1974 Federal Constitution,25 the way was open for
this province to eventually exercise the ultimate right of withdrawal both from the
common federal state and Serbia. Irrespective of the fact that in 1991-1992 Kosovo
was not accorded independence along with other republics that wished so, the 2008
declaration of independence by the provincial provisional institutions is perceived as
an act that is historically and logically inseparable from the aforementioned analysis
of the constitutional status of Kosovo within the former Yugoslavia.
For the purpose of the refutation of The End of Break-Up Argument, I will not
discuss many points of the multifaceted analysis of the constitutional history of the
former Yugoslavia that was submitted by Slovenia and Croatia. Since the major rea-
son for undertaking this analysis was to demonstrate that the legitimacy and legality
of Kosovos independence can be traced in the constitutional status of this province
under the 1974 Constitution of the SFRY, I will focus on this point.
First of all, one can indeed characterize the then constitutional status of Kosovo
as unusual, as the one of de facto constitutiveness at the Federal level, and, thus,
as the one largely equal to that of republics. However, both some signicant facts
of political history of the province, as well as certain explicit constitutional provi-
sions, which Slovenia and Croatia failed to mention, point to the conclusion that de
jure status of republics and provinces was in certain fundamental respects dierent.
Otherwise, if there were no signicant legal dierences between the two types of
federal subjects, Kosovo Albanians would probably have not so persistently insisted
on the constitutional elevation of their province to the status of republic. The politi-
cal events I have in mind are the huge public rallies that were organized as early as
in 1981 throughout the province. The dominant slogan of these protests was Kosovo
Republic. This political goal was afterwards more or less openly propagated by the
was therefore signicant, and consequently the autonomous provinces formed de facto
constitutive elements of the SFRY. Ibid. .
After providing a detailed argumentation for the claim that the fundamental constitu-
tional amendments that changed the status of the Serbian provinces were in violation
of the SFRY Constitution, authors of the Slovenian written comments acknowledge that
the then Constitutional Court of Yugoslavia (composed of members from all republics
and provinces) did not consider any of these fundamental amendments as unconsti-
tutional. The only dissenting opinion came from the then Slovenian Constitutional
Court Judge, Professor Ivan Kristan, who was of the opinion that, the status of the au-
tonomous provinces was aected by the aforementioned amendments. Written Com-
ments of Slovenia, April , .
leading communist party cadre of Kosovo Albanians until the beginning of 1990s
when they started to agitate for the outright independence of the province.26
It seems that one of the obvious reasons for this struggle for the status of republic
can be found in the expectation that in some worst case scenario, which gained more
credibility after President Titos death in 198027, republics would be in a better-o
position. This expectation was grounded in the explicit wording of the 1974 Federal
Constitution. Even though this constitution, unlike its Soviet 1977 counterpart, had
no explicit legal norm on the right of republics to secede from the federation,28 it
stipulated in its introductory, non-normative part (Basic Principles, Chapter I, par.
1) the right of all Yugoslav peoples (narodi) to self-determination, including the right
to secession. This provision read as follows:
The peoples of Yugoslavia [emphasis mine], proceeding from the right of every people to
self-determination, including the right to secession, on the basis of their will freely ex-
pressed in the common struggle of all nations and nationalities in the National Liberation
War and Socialist Revolution, and in conformity with their historic aspirations, aware
that further consolidation of their brotherhood and unity is in the common interest, to-
gether with the nationalities with whom they live [emphasis mine], have united in a federal
republic of free and equal nations and nationalities and created a socialist federative com-
munity of working people.29
The italicized phrases in this provision clearly indicate that the holder of the right to
self-determination, including the right to secession, was narod (people, nation), and
not narodnost (nationality), which was the designation used for national minorities
that had their own kin-state. Kosovo Albanians apparently wanted, through acquir-
ing the status of republic for their territorial unit, to also gain the status of a con-
stituent people and, thus, become the holder of the said right. This did not happen
and Kosovo entered the last act of Yugoslav drama as one of two provinces of Serbia.
Cf. Written Statement of Serbia, . Th is point was mentioned in the oral presenta-
tion of the representative of the Netherlands, Verbatim Record, Thursday December
, CR /, .
Until his death in , Tito remained the strongest cohesive factor of the SFRY. Thus,
after that moment, the Titoist program to defuse nationalities problems was also des-
tined to fail. See Sabrina P. Ramet, Nationalism and Federalism in Yugoslavia, -
, nd Edition, (Bloomington: Indiana University Press, ), . For a more gen-
eral study on how this Yugoslav version of communist ethno-federalism contributed to
the failure of the common state see Miodrag Jovanovi, Transition and Federalism
East European Record, in Federalism and Decentralisation in Eastern Europe: Between
Transition and Secession, eds. Miodrag Jovanovi and Slobodan Samardi (Fribourg,
Zurich and Vienna: Institut du Fdralisme, ), -.
See in more details in, Miodrag Jovanovi, Constitutionalizing Secession in Federalized
States A Procedural Approach, (Utrecht: Eleven, ), -.
On the treatment of the secession issue in the constitutional documents and theory
of the former Yugoslavia see Peter Radan, Secession and Constitutional Law in the
Former Yugoslavia, University of Tasmania Law Review (): .
That provinces did not enjoy the equal de jure status with republics was far more
clearly conrmed in the Badinter Commissions opinions. Notwithstanding the fact
that they are generally decient in many ways,30 these opinions serve as an authorita-
tive legal interpretation of the events in the former Yugoslavia. In that respect, they
are actually the strongest refutation of The End of Break-Up Argument. Namely, as
early as on 22 December 1991, the then political leader of Kosovo Albanians, Dr Ru-
gova, wrote to Lord Carrington, the Chairman of the Peace Conference on Yugosla-
via, asking for independence of the province. This request was based on the results
of an illegally organized referendum, held from 26 to 30 September 1991, which,
according to the Albanian sources, resulted in 87 of the turn-out and 99.87 vote
in favor of independence. This request was, however, rejected. On 15 June 1992, the
European Community (EC) (now European Union (EU)) stated, that frontiers can
only be changed by peaceful means and (the EC countries) remind the inhabitants
of Kosovo that their legitimate quest for autonomy [emphasis mine] should be dealt
with in the framework of the EC Peace Conference.31 Consequently, the uniqueness
of Kosovo case can in no way be attached to the process of the break-up of the former
Yugoslavia.
4 The Human Rights Violation Argument

As for the argument that the unique character of Kosovo stems from the fact that the
relevant minority was exposed to a prolonged politics of institutional discrimination
and human rights violations, it is directly connected to a specic interpretation of
the law on self-determination, in particular the famous saving clause of the 1970
Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the UN. This clause
is contained in Principle 5, paragraph 7 of this document and it states that nothing
in the section on self-determination shall be construed as authorizing or encourag-
ing dismemberment or impairment of the territorial integrity of states, conduct-
ing themselves in compliance with the principle of self-determination (dened in
paragraphs 1-6), and thus possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed or color.32 Although
See, in general, Peter Radan, The Break-up of Yugoslavia and International Law, London
and New York: Routledge, ). Cf. Jovanovi, note above, Chapter .
EC Press Statement, Luxembourg, June ,. Quoted after, Roland Rich, Recogni-
tion of States: The Collapse of Yugoslavia and the Soviet Union, European Journal of
GA Res. (XXV), UN Doc. A/RES/ ( October ). This clause is rearmed
in section I() of the Vienna Declaration and Programme of Action of the World
Conference on Human Rights. International Legal Materials : , as well as
in Article of the UN Fiftieth Anniversary Declaration, but with a signicant
change regarding the qualication at the end of the provision. Namely, the newly adopt-
ed phrase is unlimited in scope, and it speaks of a government representing the whole
people belonging to the territory without distinction of any kind. GA Res. /, UN
Doc. A/RES// ( October ).
it is dubious whether this clause can be indeed interpreted as implicitly authoriz-

ing secession,33 it is certain that its application would be limited to cases where the
central authorities of a multinational State are irremediably oppressive and despotic,
persistently violate the basic rights of minorities and no peaceful and constructive
solution can be envisaged. In other words, under this reading of international law
on self-determination, unilateral secession, as a form of external self-determination,
would be possible only in exceptional cases where factual conditions render internal
self-determination impracticable.34 Hence, even if we agree for the purpose of this
paper that this interpretation of international law of self-determination is plausible,
the proponent of The Human Rights Violation Argument would still have to present
clear evidence that the factual situation on the ground rendered the remedial right
to secession. In addition, this argument would justify the unique case thesis if and
only if no other case could be said to match the level of human rights infringements
recorded in Kosovo.
Let me start with the rst part of this argument. Professor Gill, the representative
of Albania before the Court, supporting the aforementioned interpretation of the
saving clause, stated that if ever were a case of remedial secession as a last resort,
then Kosovo is such a case.35 He grounded this statement in the evidence that sys-
tematic exclusion of Kosovo Albanians from political life, as well as gross human
rights violations are incontestable and a matter of public record.36 A number of
Although he disagrees with such an interpretation, Shaw points to the fact that by re-
versing the proposition of the saving clause, states that do not so conduct themselves
are not protected by the principle of territorial integrity. Malcolm N. Shaw, Peoples,
Territorialism and Boundaries, European Journal of International Law (): .
Crawford, on the other hand, notices that if this proviso is taken to mean that unilat-
eral secession is permissible where the government is constituted on a discriminatory
basis, it is doubtful whether the proviso reects international practice. James Craw-
ford, State Practice and International Law in Relation to Unilateral Secession. Report to
Government of Canada Concerning Unilateral Secession by Quebec, February ,
Part IV. Accessed July . http://www.justice.gc.ca/en/news/nr//factum/craw.
html.
Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge:
Cambridge University Press, ), . Designations internal and external are now
conventionally used among international legal scholars to denote two dierent aspects
of self-determination. Whereas the external aspect, denes the status of a people in
relation to another people, State or Empire, the internal or democratic aspect concerns
the relationship between a people and its own State or government. Patrick Thorn-
berry, The Democratic or Internal Aspect of Self-Determination with some Remarks
on Federalism, in Modern Law of Self-Determination, ed. Christian Tomushat, (Dor-
drecht: Martinus Nijho, ), .
Verbatim Record, Wednesday December , CR /, . The German repre-
sentative also stated that, [t]he developments preceding the Declaration of Independ-
ence reveal a clear case of prolonged and severe repression and denial of internal self-
determination that left the people of Kosovo no other meaningful choice. . Cf. the
oral presentation of the Netherlands, CR /, .
CR /, .
countries (e.g. Albania, Austria, France, Slovenia, United Kingdom, United States)
in their written submissions presented what they take to be sucient evidence of
that record.37
It is clear that this argument decisively depends on the comprehensive and im-
partial fact-nding, as well as on the adequate attachment of legal consequences to
the established facts. When all the written submissions in favor of the Kosovo Alba-
nians right to remedial secession (external self-determination) taken together, one
can dierentiate between at least three groups of facts supporting this argument.
These are: a) the withdrawal of political autonomy; b) the denial of participation
rights; c) large-scale violations of fundamental human rights.
a) The rst of these concerns the widely acknowledged allegation that in 1989-1990
Kosovo was stripped of its autonomy.38 It is commonly asserted that, in this period,
Miloevi engineered the modication of the SFRY and Serbian constitutions to
all but eliminate Kosovos autonomy as a practical matter.39 That is, the previously
guaranteed autonomy of the province was not only severely diminished,40 but it
was eectively revoked,41 which resulted in the forcible and complete integration
of Kosovo into Serbia.42
While it is correct to say that, with these constitutional changes, the previously
enjoyed extensive autonomy of the province was signicantly restricted,43 it is highly
improbable to assume that, in doing so, Serbia at the time violated any of the fun-
damental norms of international law. One may argue, as Cassese, for instance, does,
that the current political claim of minorities around the globe to the right to au-
tonomy might be evolving, particularly in the light of a right to democracy as part
The same argument is advanced in a NATO funded report, Dajena Kumbaro, The Kos-
ovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity
and the NATO Intervention, , . Accessed September . http://www.nato.
int/acad/fellow/-/kumbaro.pdf.
Oral statement of the representative of Croatia, Verbatim Record, Monday December
, CR /, .
Written Statement of United States of America, April , .
Written Statement of United Kingdom, April , .
Written Statement of Austria, April , .
Written Statement of France, April , .
It is important to notice that the whole process was conducted with the full participa-
tion of the federal bodies, in which all republics and provinces were represented. More-
over, the proposed constitutional amendments were given assent of the Kosovo Assem-
bly. Due to the deteriorated political situation on the ground, the collective Presidency
of the SFRY did introduce the state of emergency prior to the sitting of the provincial
legislative, but even the Albanian member, Mr. Sinan Hasani, reassured the collective
Presidency that the session should be convened, since all structures of the province
have voted for those (constitutional) changes. See in more detail in, Written Statement
of Serbia, April , -.
of the internal right to self-determination,44 but it is without any doubt that even
under the present framework of public international law, minorities or peoples do
not yet have a legal right to autonomy.45 If we were to draw any contrary conclusion,
we would be then forced to argue that the same breach of international law could
be extended to similar cases. One of them would be Northern Ireland. In this case,
previously existing autonomy was revoked at the beginning of 1970s, and with the
exception of a short period in 1984, this territory was continually under the direct
rule of the British Government until 2006. And yet, apart from academic debates,
no argument in favor of Northern Irelands right to remedial secession was ever seri-
ously raised in the international political arena.46
More importantly, Serbia never actually completely quashed the autonomy of
Kosovo Albanians. What it did with the 1989 constitutional amendments was to
change what in comparative constitutional law and practice (even of socialist states)
seemed to be unprecedented competences of an autonomous regime within a larger
political unit. According to the 1974 constitutional arrangement, the institutions
of the Republic, which included provincial representatives as well, were responsible
only for the aairs in Serbia proper, while the provinces were ruled almost exclu-
sively by local institutions. Furthermore, even when exercising a limited number of
competences on the whole of its territory, the central state had to rely on the coop-
erative behavior of provinces in order for those measures to be eective. Lastly, if
provincial constitutions were contrary to that of the Republic, no legal mechanisms
existed that would ensure the latters primacy.47 The subsequently adopted 1990
Constitution of Serbia preserved the territorial autonomy of provinces and charged
local institutions with competences in the eld of education, culture, ocial use of
minority languages, public information, health and social protection, child care, en-
vironment and urbanism. Finally, the recently enacted 2006 Constitution of Serbia
stipulates that Kosovo shall exercise substantial autonomy (Preamble), the precise
Cassese, note above, -.

Hans-Joachim Heintze, On the Legal Understanding of Autonomy, in Autonomy: Ap-
plications and Implications, ed. Markku Suksi (The Hague: Kluwer Law International,
), .
Moreover, revoking an autonomous political regime in a long lasting liberal-democracy,
such as the one in the UK, would seem to be a more plausible candidate for a breach of
international law (if such law had ever existed), than taking a similar political step in
an one-party, undemocratic political regime. In that respect, some of the main adher-
ents of multiculturalism (and they are readily followed by pro-Kosovo independence
states) tend to put an inappropriate emphasis on the communist party controlled mi-
nority autonomy, as if that concept could in any meaningful sense be construed without
democratic process and various liberal rights and liberties, such as those to free speech,
freedom of assembly, political organization, free and fair multiparty elections, etc. See
my response to Kymlickas attempt to extend his liberal theory of minority rights to
Central Eastern Europe, Miodrag A. Jovanovi, Territorial Autonomy in Eastern Eu-
rope Legacies of the Past, Journal on Ethnopolitics and Minority Issues in Europe
(): -.
Cf. Written Statement of Serbia, April , .
content of which is to be determined as a part of a negotiated political settlement

for Kosovo.48
b) The reference to the previous allegation is often coupled with the argument that
Kosovo Albanians were denied the right to participate in the political life of the
country. In its Written Statement, Switzerland, for instance, states that the people
of Kosovo can ... exercise a right of self-determination that is dierent from that of
the population of Serbia, grounding this claim in Crawfords thesis that such a situ-
ation can arise when the inhabitants (of the territories forming distinct political-
geographical areas) are arbitrarily excluded from any share in the government either
of the region or of the State to which they belong, with the result that the territory
becomes in eect, with respect to the remainder of the State, non-self-governing.49
This legal conclusion, thus, decisively depends on the prior establishment of the
fact that Albanians were arbitrarily excluded from both provincial and central
state institutions by the Serbian authorities. However, it seems that such a quali-
cation would be an overstatement. While there were instances of the Party cadre
substitution on the ethnic basis, what we actually witnessed was largely a voluntary
withdrawal of representatives of Kosovo Albanians. This happened, for instance, in
the case of the Provincial Assembly.50 This act was followed by the establishment of
the parallel Assembly of Kosova, which issued several declarations on the new sta-
tus of province, that were annulled by the Federal Constitutional Court.51 This was
the start of the formation of a complete structure of parallel political and societal
institutions for Kosovo Albanians.52 Hence, even though voluntary withdrawal from
the ocial institutions, as a result of political dissatisfaction, is a legitimate politi-
cal strategy, it can certainly not be qualied as an arbitrary exclusion of minority
representatives. On the contrary, the willful absenteeism of Albanian provincial rep-
resentatives can rather be qualied as a misuse of their constitutional rights, which
aected their responsibility in accordance with the generally accepted legal maxim:
Ibid. .
Switzerland draws the conclusion that Kosovo was in fact a non-self-governing territory
as dened by Crawford. Written Statement of Switzerland, , quoting James Craw-
ford, The Creation of States in International Law, nd Edition, (Oxford: Oxford Univer-
sity Press, ), .
This came in May as a reaction to the previous decision (terminated on April)
of the Presidency of the SFRY, presided by the Slovenian representative Dr. Drnovsek,
to introduce the state of emergency and to use the armed forces in Kosovo. It was only
after this move of Kosovo Albanians that the Serbian Assembly introduced the Decision
about the Existence of Special Circumstances on the Territory of Kosovo ( June ).
As a reaction to the Constitutional Declaration on Kosovo as a Self-standing and Equal
Federal Unit within the Federation (Confederation) Yugoslavia as an Equal Subject with
Other Units in the Federation (Confederation) issued on July , the Serbian As-
sembly two days later adopted the Law on Termination of the Kosovo Provincial As-
sembly.
Cf. Written Statement of Serbia, April , -.
nullus commodum capere de sua iniuria (no one may derive an advantage from his
own unlawful acts).53
Kosovo Albanians implemented the same strategy at the central level. For ex-
ample, they persistently boycotted all ocial elections, starting with the very rst
parliamentary elections in 1990. At the same time, citizens belonging to this ethnic
minority, as well as their political organizations, could participate in all electoral
processes under the same conditions as other citizens and political parties. In addi-
tion, for the viability of the arbitrary exclusion argument it would be particularly
detrimental if one can present evidence that the exercise of participation rights of
Kosovo Albanians could have contributed to the fall of the regime which they per-
ceived as the source of their oppression. This chance was actually wasted in the early
days of Miloevis rule, in the 1992 republican and presidential elections. Miloevi
was confronted with the candidacy of the then Federal Prime Minister, a pragmatic,
US-based businessman, Mr. Pani, who was backed by all relevant Serbian opposi-
tion parties. In a specially convened, behind the scenes meeting, one of the ministers
from Panis government tried to persuade one of the political leaders of Kosovo
Albanians, Mr. Fehmi Agani, to support the Federal Prime Minister. He received a
fair and outright answer, that the real goal that Albanians were interested in inde-
pendence could be far more easily achieved with Miloevi in power.54
c) The third group of facts supporting the argument in favor of Kosovo Albanians
right to remedial external self-determination concerns large-scale violations of fun-
damental human rights perpetrated by the Serbian authorities. To begin with, it is
very hard to fully grasp into the human rights situation of a part of a country/popu-
lation without placing it within the larger historical and political picture. This is,
unfortunately, what all pro-Kosovo independence written submissions to the Court
do. When faced with the problem of explaining the fact that, at the beginning of
1990s, some illegal Albanian political institutions were established, a parallel school-
ing system was organized, that even the boycott of ocial medical care facilities
was encouraged, and eventually the series of terrorist acts were instigated, these
submissions simply pick out the most convenient time framework and then present
Milenko Krea, The Badinter Arbitration Commission (A Critical Commentary) (Bel-

grade: Jugoslovenski Pregled, ), .
This information was provided to the author in a private conversation with the afore-
mentioned envoy of the Federal Prime Minister. Kosovo Albanians commonly justied
their boycott strategy with the argument that their votes would not only be thrown
away, but that they would furthermore legitimize Miloevis rule. However, as one dis-
interested commentator notices, the million Albanian votes could undoubtedly have
ousted Miloevi, but as the Kosovar leadership admitted at the time, they did not want
him to go. Unless Serbia continued to be labeled as profoundly evil and they them-
selves, by virtue of being anti-Serb, as the good guys they were unlikely to achieve
their goals. It would had been a disaster for them if a peace monger like Pani had re-
stored human rights, since this would have left them with nothing but a bare political
agenda to change borders. Miranda Vickers, Between Serb and Albanian: A History of
Kosovo (New York: Columbia University Press, ), .
the facts in an apparently appropriate matrix of causes and eects. Illustrative in

that respect is the US Written Statement, which uses the sub-title Repression and
Response, in order to explicate the situation on the ground in the late 1980s, where
the roles designated to the Serbian state and Albanian political leaders are obvious
enough.55
Kosovo, however, is a far more complicated story of inter-ethnic conicts. For
instance, one can easily take a step back to the year of 1974 and the beginning of a
radical constitutional decomposition of the federal state and Serbia itself,56 in order
to determine repercussions that these changes had on the society of Kosovo. Vick-
ers gives a brief summary of these consequences: 1974 constitution caused positive
discrimination in favour of the Albanians in Kosovo: bilingualism became a condi-
tion for employment in public services, four fths of available posts were reserved
for the Albanians on a parity bases and national quotas were strictly applied when
nomination were made for public functions. Thus began the virtual Albanisation
of public life in Kosovo.57 It is estimated that during the 1970s more than 50,000
Serbs left Kosovo, which along with the high birth rate among Kosovo Albanians,
dramatically changed the demographic situation in the province.58 Finally, according
to the testimony of the former American Ambassador to Yugoslavia, Mr. Zimmer-
mann, when asked how Albanians treated Serbs in that period, Dr Rugova swiftly
answered that, unfortunately, there were many crimes committed against Serbs.59
When facts are presented in this, slightly changed time framework, it turns out that
the previously designated roles might easily be switched, so that the Albanian re-
pression in 1970s and the beginning of 1980s becomes the cause which triggered the
eect the response of the Serbian state.60
Written Statement of the United States of America, April , .

As some constitutional experts note, under this constitutional act, SFRY was hardly
a state anymore. Jon Elster, Claus Oe, and Urlich K. Preuss, Institutional Design in
Post-Communist Societies (Rebuilding the Ship at Sea) (Cambridge: Cambridge Univer-
sity Press, ), .
John R. Lampe, Yugoslavia as History: Twice there was a Country (Cambridge: Cam-
bridge University Press, ), -. Quoted from the Written Statement of Serbia,
April , .
Warren Zimmerman, Origins of a Catastrophe: Yugoslavia and Its Destroyers (New
York: Three Rivers Press, ), . Quoted from the Written Statement of Serbia,
April , .
This vicious circle of constantly switched roles of victims and oppressors in Kosovo
continues to this very day, as witnessed by events after . In a paradigmatic passage
from Minority Rights Groups report, it is said: [n]owhere in Europe is there such
segregation as Kosovo. Thousands of people are still displaced and in camps. Nowhere
else are there so many ethnically pure towns and villages scattered across such a small
province. Nowhere is there such a level of fear for so many minorities that they will be
harassed simply for who they are. And perhaps nowhere else in Europe is at such a high
risk of ethnic cleansing occurring in the near future or even a risk of genocide. Clive
Baldwin, Minority Rights in Kosovo Under International Rule (), . Accessed
Without any doubt, this response by Miloevis regime was at times overtly
brutal and caused numerous blatant violations of the fundamental human rights of
Kosovo Albanians. However, as virtually all human rights reports of the Special Rap-
porteur of the UN Commission of Human Rights testify, the human rights situation
before the NATO bombing was rather dire in the whole country and not only in the
province. While not challenging the widely documented record of ethnically moti-
vated discrimination and state brutality against members of the Albanian minority
in Kosovo, one cannot overlook the fact that, towards the end of 1990s, the regime
was increasingly relying on means of coercion and intimidation in its ght against
various enemies.61
As many have expected, the situation in Kosovo completely deteriorated with
the intensication of activities of the terrorist Kosovo Liberation Army (KLA) and,
particularly, after the provoked NATO campaign, leading to the forcible expulsion
and deportation of a large number of Kosovo Albanians.62 No wonder, thus, that sev-
eral written submissions took the quotation from the 2009 ICTY Trial Chambers
decision in Milutinovi et. al. case as the crucial argument in favor of the Kosovo
Albanians right to remedial secession.63 If facts from this period (mid-1998-1999)
are not contestable anymore, one may still challenge the legal conclusion the right
of Kosovo Albanians to exercise the remedial right to secession in 2008. If such a
May . http://www.minorityrights.org/admin/Download/pdf/MRGKosovoReport.
pdf. Elsewhere I argued that if Kosovo Albanians shall exercise the remedial right to
secession on the account of the prior gross human rights violations, then territorially
concentrated Serbs in the northern part of province shall have the same right, on the
account of similar atrocities committed by the provincial majority in last ten years, and
particularly in March . Miodrag Jovanovi, Final Status for Kosovo Should We
really be Petried With the Partition Option? in Sovereignty and Diversity, eds. Mio-
drag Jovanovi and Kristin Henrard (Utrecht: Eleven, ), -.
For example, in the report of the Special Rapporteur of the UN Commission of
Human Rights, it is said: It should be noted that cases of police abuse are not a prob-
lem exclusively associated with the volatile situation in Kosovo. Serious cases of ill-
treatment by the police were recorded, e.g. during winter demonstrations in Belgrade
and elsewhere in -, and later in connection with street protests in Belgrade on
September and October , in reaction to the ousting of the citys mayor, Mr.
Zoran Djindjic, and other controversial acts. A large number of people were injured and
some arbitrarily detained when police violently dispersed demonstrators. UN Doc. E/
CN.// (), .
As put by Ignatie, this human rights intervention, when it came in March , then
unleashed a genuine human rights disaster. Michael Ignatie, Human Rights as Politics
and Idolatry (Princeton and Oxford: Princeton University Press, ), .
In the decision that covers the period from mid- and , it is inter alia stated that
[t]hrough a widespread and systematic campaign of terror and violence, the Kosovo Al-
banian population was to be forcibly displaced both within and without Kosovo, with
the aim of establishing a more balanced demographic situation. See, e.g. Written State-
ment of the Kingdom of the Netherlands, April , . Written Statement of the
United States of America, April , . Written Statement of the United Kingdom,
April , . Written Statement of Norway, April , .
right was grounded in the irremediably oppressive64 behavior of the central state,
one would expect it to be activated and recognized by international community im-
mediately in 1999. As is well known, not only that this has not happened, but the SC
Resolution 1244 explicitly conrmed the territorial integrity of the Federal Republic
of Yugoslavia (to be eventually succeeded by Serbia). Consequently, one can indeed
hardly explain why the right to remedial secession of Kosovo Albanians would be
triggered a decade later, when the province enjoyed the substantial autonomy both
under the UN administration and the new constitution of Serbia, which since 2000
has been an entirely democratic state with a solid record of protection of fundamen-
tal human and minority rights.65
To sum up, regarding the withdrawal of political autonomy allegation, it was dem-
onstrated that neither the autonomy of Kosovo was completely abolished, nor any
reduction of competences of the provincial authorities could at the time be qualied
as the breach of international law. As for the denial of participation rights allegation,
it was revealed that Kosovo Albanians political strategy of voluntary withdrawal
from and boycott of ocial institutions cannot amount to the arbitrary exclusion
(Crawford) of minorities from the political life of country. With respect to the large-
scale violations of fundamental human rights allegation, it was shown that if the in-
tensity of infringement had been such as to activate the right of Kosovo Albanians to
remedial secession, then this would have been acknowledged by international com-
munity already in 1999 when the de facto power of the Serbian state was suspended
in the province.
Finally, even if the mentioned right of Kosovo Albanians can be grounded in
these three groups of facts, and, in particular, in the last one, the complete Human
Rights Violation Argument would support the unique case thesis if and only if no
case comparable to that of Kosovo exists elsewhere in the world. Once again, this
conclusion would be very hard to sustain. Take, for example, the case of the province
Aceh in Indonesia. It is widely acknowledged that the protracted conict between
the Government of Indonesia (GoI) and the secessionist Free Aceh Movement (Ger-
akan Aceh Merdeka, GAM) constitutes one of the longest and bloodiest conicts in
Southeast Asia.66 The 1999 Amnesty International Report sheds light on the nature
of this conict, by saying:
Aceh was classied as an Area of Military Operation (Daerah Operasi Militer, DOM)
from 1990 to August 1998. The DOM status was used to justify counter-insurgency op-
Cassese, note above, .

Cf. Written Statement of Serbia, April , . The former federation of Serbia
and Montenegro was already in rated as Free Country in the well known survey
of Freedom House. Ever since, this status has been conrmed, including the last three
reports (-) that referred to the independent state of Serbia. Accessed April
. www.unhcr.org/refworld/country,,FREEHOU,,SRB,,,.html.
Rizal Sukma, Resolving the Aceh Conict: the Helsinki Peace Agreement, . Accessed
March . http://know.brr.go.id/dc/articles/_Resolving_Aceh_Conict_
Helsinki_Peace_Agreement.pdf.
erations against Aceh Merdeka. In the context of these counter-insurgency operations

large-scale human rights violations occurred including extrajudicial executions, disap-
pearances, torture and rape, imprisonment of peaceful activists and unfair political trials.
The situation was exacerbated by an atmosphere of fear in which those seeking to chal-
lenge the authorities were subjected to threats and intimidation. Human rights monitor-
ing by domestic and international non-governmental organizations was prevented by the
authorities.67
Despite certain positive internal political dynamics in 2005, the annual report of
the same international non-governmental organization was no less dramatic: The
downgrading in May of the military emergency to a civil emergency had little impact
on the human rights situation. Cases of extrajudicial executions, arbitrary detention,
torture, sexual violence and destruction of property continued to be reported.68
Irrespective of this disastrous legacy of the central governments politics towards
its minority, on 15 August, 2005, the GoI and GAM signed a peace agreement in
Helsinki, referred to as the Memorandum of Understanding (MoU). In the pre-nego-
tiating phase, GAM insisted on nothing less than independence, but eventually the
MoU, inter alia, foresees: a new Law on the Governing of Aceh (without using the
terms self-government or special autonomy), the right to form local political parties
in Aceh, direct democratic elections in Aceh in 2006 (Head of Aceh Administra-
tion and other elected ocials) and 2009 (Aceh Legislature) and a share of 70 of
revenues from hydrocarbon deposits in Aceh. The MoU emphasizes that Indonesia
remains a unitary country.
As indicated in one report on this document: The MoU reects a strong willing-
ness from both sides to make compromises, insofar as it agrees on the autonomous
nal status of Aceh within the Republic of Indonesia; allows GAM transformation
and political participation; agrees the force level for the Indonesian troops to remain
in Aceh, with its main responsibility to uphold external defense of the province;
agrees to focus on building condence and trust, before taking on the problems of
human rights abuses.69
5 The Humanitarian Intervention Argument

Faced with the rebuttal of the previous argument, one might resort to the claim that
the uniqueness of Kosovo situation, which eventually led to the recognition of the
unilateral act of independence, stemmed in fact from the NATOs humanitarian
intervention. On 6 February 2007, Daniel Fried, the US Assistant Secretary of State,
endorsed this argument in the following way:
Amnesty International, Recent Violence in Aceh: An Internal Brieng for Govern-

ments, January . Accessed April . www.amnesty.org/en/library/asset/
ASA///en/a-ed-dd-ad-/asaen.pdf.
Accessed June . http://wpik.org/Src/amnestyusa.html.
Sukma, note above, .
Kosovo is a unique situation, because NATO was forced to intervene to stop and then re-
verse ethnic cleansing. The Security Council authorized Kosovo to be ruled eectively by
the United Nations, not by Serbia. UN Council Resolution 1244 also stated that Kosovos
nal status would be the subject of negotiation. Those conditions do not pertain to any of
the conicts that are usually brought up in this context. Its not applicable to Abkhazia,
or South Ossetia, or Transdniester. Nor is it applicable to Chechnya or to any separatist
conicts in Europe.70
In one of interviews, the chief mediator in Kosovo negotiation, Martti Ahtisaari,

went a step further and on the journalists comment that the Serbias territorial in-
tegrity guarantee in the SC Resolution 1244 represented the other side of the story,
he responded that: theres only one side to story. Because, in 2005, the General As-
sembly accepted the principle: responsibility to protect. If a dictatorial leadership in
any country behaves the way as Milosevic and company did vis--vis the Albanians
in Kosovo, they lose the right to control them any more [emphasis mine].71 Hence,
whereas in the former statement, the emphasis is put on the fact that the NATO
intervention in Kosovo is what primarily makes this case a unique one, the latter
statement highlights the legal consequence Serbias irretrievable loss of the title to
rule the province.
Let me rst deal with Frieds statement. Nobody can deny a simple fact that the
intervention taken in Kosovo was lacking in the aforementioned or some other sepa-
ratist conicts. In this trivial sense, one can indeed argue that Kosovo is a unique
case. However, the unique case thesis would rest on a highly arbitrary criterion, if it
would be up to a discretionary decision of a military alliance or a coalition of will-
ing states whether to use force or not. Since this intervention was taken outside of
the existing UN legal system, the real issue here is, thus, whether Kosovo could be
said to represent a unique case of supreme humanitarian emergency72 not compa-
rable to any other situation in the world, which forced NATO to intervene.
We are, once again, taken back to the problem of fact-nding. It was already noted
that the repression of Miloevis regime in the province intensied with the rise of
terrorist activities of the KLA.73 However, the NATO justication for the start of the
military operation contradicts certain relevant sources on the ground. On the web
Council on Foreign Relations, Serbs Urged to Accept Kosovo Plan to Gain European
Future, Interview with Daniel S. Fried. Accessed June . http://www.cfr.org/pub-
lication/.
Interview with Mr. Ahtisaari, CNN, December . Accessed June . www.
youtube.com/watch?v=rHvpgj-ns-Mandfeature=related. Written Comments of Serbia,
July , .
This term was rst coined by Nicholas J. Wheeler in his book Saving Strangers: Humani-
tarian Intervention in International Society (Oxford: Oxford University Press, ).
Ignatie notes that: [t]he Kosovo Liberation Army committed human rights abuses
against Serbian civilians and personnel in order to trigger reprisals, which would in
turn force the international community to intervene on their behalf. Ignatie, note
above, .
page dedicated to the NATOs role in relation to the conict in Kosovo, it is stated
that the rst objective of the Alliance was a veriable stop to all military action
and the immediate ending of violence and repression. In providing the historical
background to the operation, one of the crucial dates is 20 March 1999, when the
OSCE Kosovo Verication Mission was withdrawn from the region, having faced
obstruction from Serbian forces to the extent that they could no longer continue
to fulll their task.74 According to the testimony of the retired general of the Ger-
man Bundeswehr, Heinz Loquai, who was a member of the OSCE mission in the
province, [t]he actual situation in Kosovo does not support this rationale, however.
For example, the OSCE reports on 18 March: the situation in the region remains
generally tense, but calm. On this day the OSCE carries out 120 patrols with no
diculty.75 The very OSCE monthly report for the period from 20 February to 16
March 1999 referred to no more than twelve incidents of obstruction of the Mission
by the Serbian military and police, which can hardly imply the conclusion that the
Serbian government decided to openly confront the Mission.76 This simply means
that the political decision to intervene was already taken irrespective of the factual
situation on the ground.
One of the triggering events, which occurred on 15 January 1999 and sped up the
preparation for the military intervention, came subsequently to be known as Raak
massacre. Without going into the background and details of this case,77 it raised
some serious doubts with respect to the established facts, and yet, it was largely ex-
ploited in both local and international media to mobilize public in the intervening
countries for the radical course of action. Dierent actors operated with dierent
gures of the victims, whether any of them were women and children, whether they
were civilians or combatants, and whether they were killed in a battle or were ex-
NATOs role in relation to the con ict in Kosovo. Accessed June . http://www.
nato.int/kosovo/history.htm.
Heinz Loquai, Kosovo A Missed Opportunity for a Peaceful Solution to the Con-
ict? OSCE Yearbook (): .
Heinz Loquai, Der Kosovo-Konikt Wege in einen vermeidbaren Krieg (Die Zeit von
Ende November bis Mrz ) (Baden-Baden: Nomos, ), .
This small village, with no more than inhabitants, was one of the strongholds of
the terrorist KLA. During , the KLA conducted a number of illegal actions in the
area, including kidnappings and arson attacks and in the rst weeks of January ,
they mounted attacks on Serbian police posts in the neighboring municipalities, killing
four Serbian policemen. In response, Yugoslav and Serbian security forces established
a security cordon in the immediate area of the attacks and around Raak and its neigh-
boring communities. On January, reports were received by the Kosovo Verication
Mission of civilians being killed in Raak. OSCE monitors access was refused and they
watched the ghting from a nearby hill. When they later, in the afternoon, gained access
to the village, they found one dead man and ve injured people and received the report
of twenty men being taken away by the Yugoslav security forces. The Verication Mis-
sion returned next morning, escorted by human rights experts, and found bodies.
See ibid. -.
ecuted and massacred.78 Western politicians, nonetheless, did not hesitate to inten-
tionally use the inamed rhetoric. Hence, President Clinton referred to the victims
as innocent men, women and children (that) were taken from their homes to a gully,
forced to kneel in the dirt and sprayed with gunre., the then US Foreign Secretary,
Madeleine Albright, spoke of dozens of people with their throats slit, while the
German Foreign Minister, Fischer, and some media claimed that the dead at Raak
had been civilians, which were even mutilated (e.g. eyes gouged out) or executed as
they lay.79 NATO, for its part, classied as the established fact the massacre of
over 40 people in the village of Racak.80
These qualications are, however, in stark contrast with the EU forensic expert
teams ndings. This team was not able to determine either the manner of death,
or to establish a chain of events verifying that the 40 bodies they were given to
investigate even came from the Raak site. In any case, the report did not contain
any evidence of torture, deliberate mutilation or a massacre.81 Furthermore, ten
years after the intervention, the leader of the team, forensic dentist Helena Ranta,
reveals in her autobiography that ocials of the Ministry for Foreign Aairs tried to
inuence the content of the report. In that respect, she also mentions that William
Walker, the head of the OSCE Kosovo monitoring mission, broke a pencil in two and
threw the pieces at her when she was not willing to use suciently strong language
about the Serbs.82
The NATO military intervention in Kosovo was taken without the Security
Councils authorization, but it was often justied as a necessary step dictated by rea-
sons of political morality. This argument decisively depended on a full and impartial
Loquai points to the fact that the OSCE Mission and the EU mandated team of Finnish
pathologists determined the toll of victims. They both reported that one woman was
among victims, but unlike in the OSCE report, the pathologists report had no mention
of one child. On the other hand, William Walker, the head of the Mission, spoke of
victims (three women and one child); Joshka Fischer in his letter to Miloevi referred
to victims, including women and children. The same gure was found in the Human
Rights Watch report, which specied that nine victims were KLA soldiers, at least two
of victims were women and one of them was a twelve years boy. Ibid. , footnote .
Quoted from Brendan Stone, The US-NATO Military Intervention Triggering Eth-
nic Conict as a Pretext for Intervention. Accessed May . http://www.globalre-
search.ca/index.php?context=va&aid=.
Hence, this information can be found at the NATO web page on Kosovo in the rubric
Facts and gures. Accessed September . http://www.nato.int/kosovo/history.
htm.
J. Rainioa, K. Lalu, and A. Penttila, Independent Forensic Autopsies in an Armed Con-
ict: Investigation of the Victims from Racak, Kosovo, Forensic Science International
: (): -. In the separate investigation, a Byelorussian forensic team came to
the conclusion that there were no traces of the execution performed from close vicinity.
Loquai, note above, , footnote .
Helena Ranta: Foreign Ministry tried to inuence Kosovo reports. Accessed April
. http://www.hs./english/article/Helena+Ranta+Foreign+Ministry+tried+to+inu
ence+Kosovo+reports/.
establishment of facts which, in this case, were often used in a discerning and ma-
nipulative manner.83 Taking all aforementioned into account, one can hardly assess
the situation on the ground in the early months of 1999 as an unparalleled case of
supreme humanitarian emergency. The fact that the humanitarian intervention
was undertaken in Kosovo and not in same other cases is, thus, not conclusive evi-
dence that Kosovo is a unique case, but rather that humanitarian reasons are used
selectively.84 And, in Chinkins words, selectivity undermines moral authority. She
notes that the commitment to human rights that humanitarian intervention sup-
posedly entails does not mean equality of rights worldwide, insofar as the message
is constantly being sent that human rights of some people are more worth pro-
tecting than those of others. For instance, [m]ilitary intervention on behalf of the
victims of human rights abuses has not occurred in, inter alia, Sudan, Afghanistan
or Ethiopia. It was woefully inadequate and delayed in Rwanda.85 Consequently, the
NATO intervention in Kosovo can in no way sustain the unique case thesis.
I move now to the argument that the NATO intervention could be perceived as a
part of the UN-promoted responsibility to protect framework (R2P).86 According to
Ahtisaari, this interpretation would in turn imply that Serbia shall be permanently
deprived of the title to rule the province. The rst problem with this statement is
that it presumes that, with the adoption of the R2P principle, the 2005 World Sum-
A article in The Guardian points exactly in that direction: The nal toll of civil-
ians conrmed massacred by Yugoslav forces in Kosovo is likely to be under ,, far
short of the numbers claimed by Nato governments during last years controversial air
strikes on Yugoslavia... They talked of indiscriminate killings and as many as ,
civilians missing or taken out of refugee columns by the Serbs. The fact that far fewer
Kosovo Albanians were massacred than suggested by Nato will raise sharp questions
about the organisations handling of the media and its information strategy. Serb Kill-
ings Exaggerated by West, The Guardian, August . Accessed June .
http://www.guardian.co.uk/world//aug//balkans. This led Foley to state that
Kosovo set a precedent of western politicians lying to the public in order to justify the
war and then lying about its causes and consequences. Conor Foley, The Thin Blue Line
How Humanitarianism Went to War (London: Verso, ), . Cf. Jrgen Elssser,
Kriegslgen Vom Kosovokonikt zum Milosevic-Prozess (Berlin: Kai Homillius Verlag,
).
The same Guardian article raises doubts about the motives for military intervention:
The exhumation of less than , bodies is sure to add fuel to those who say Natos
intervention against Yugoslavia was not humanitarian and that it had other motives
such as maintaining its credibility in a post-cold war world. Others say Natos air strikes
revealed a grotesque double standard since western governments did nothing when
hundreds of thousands were being massacred in Rwanda. Serb Killings Exaggerated
by West. Ibid.
Christine M. Chinkin, Kosovo: A Good or Bad War? The American Journal of
The RP principle was initially developed by the International Commission on Inter-
vention and State Sovereignty (ICISS) (established by the Government of Canada) in the
December report The Responsibility to Protect. Accessed February . http://
www.iciss.ca/pdf/Commission-Report.pdf.
mit Outcome somehow ex post facto legitimized the 1999 NATO intervention in
Kosovo. This is, however, highly improbable, since this document not only contains
no reference to the previous instances of humanitarian intervention, but it also spe-
cically urges for collective action through the Security Council.87 Moreover, in
the follow-up debate on the R2P concept, organized in the General Assembly in July
2009,88 Edward C. Luck, Special Adviser to the Secretary General, explicitly stated:
This is not 1999. Ten years ago the Assembly addressed the concept of humanitarian
intervention and found it wanting. Unilateral armed intervention under the guise
of humanitarian principles was and is seen as morally, politically, and constitu-
tionally unacceptable. That is not the UN way.89 He further stressed that the debate
should dispel, some of the myths that have clung to R2P like so many unwanted
barnacles from an earlier time and place, one of which is the old caricature that
R2P is another word for military intervention, when it seeks the opposite: to dis-
courage unilateralism, military adventurism, and an overdependence on military
responses to humanitarian need.90 If this statement is not to be read as a full-edged
condemnation of the NATO intervention in Kosovo, it is at least to be seen as a step
towards discontinuity with the previous practice, established in 1999.
Finally, Ahtisaaris statement raises a far more fundamental dilemma what
should be the ultimate purpose of humanitarian interventions? In other words,
what should have been the nal objective of the Kosovo intervention other than the
one mentioned by Fried himself reversing ethnic cleansing? In the August 1999
speech, the then US Deputy Secretary of State, Strobe Talbott, clearly emphasized
this point by saying:
[W]e have suspended Belgrades powers as the administering authority over the province.
But that does not mean we support Kosovos independence. Quite the contrary, we feel
that secession would give heart to separatists and irredentists of every stripe elsewhere
in the region. Most of all, secession would encourage proponents of Greater Albania a
single state stretching across the Balkan peninsula from Albania proper to northwestern
The principle of responsibility to protect was summarized in the following way: Clear
and unambiguous acceptance by all governments of the collective international re-
sponsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. Willingness to take timely and decisive collective action for
this purpose, through the Security Council, when peaceful means prove inadequate and
national authorities are manifestly failing to do it. This principle is contained in paras.
and of the nal document of the World Summit. UN Doc. A/RES// (
September ). See, World Summit Outcome. Accessed March . www.
un.org/summit.
This debate preceded the adoption of GA Resolution, which rea rms the adopted
principles and [d]ecides to continue its consideration of the responsibility to protect.
UN Doc. A/RES// ( September ).
Edward C. Luck, Special Adviser to the Secretary General, Remarks to the General As-
sembly on the Responsibility to Protect (RP), New York, July , . Accessed
May . http://www.ipacademy.org/images/pdfs/luck_ga_statementjuly.pdf.
Ibid. .
Macedonia, with its own sizeable ethnic Albanian population. Greater Albania would be
no less anathema to regional peace and stability than Greater Serbia91
The fact that the United States decided to radically change this position and eventu-
ally recognize the unilateral act of Kosovos independence speaks only of the con-
sistency of the US foreign policy, and not of the transformation of the very principle
of humanitarian intervention. Concerning this principle, Ignatie points out that:
[b]oth our human rights norms and the UN Charter outlaw the use of military power for
territorial aggrandizement or occupation. Hence our military interventions are intended
to be self-limiting. We are intervening not to take over territory but to bring peace and
stability and then get out; our mandate is to restore self-determination, not to extinguish
it.92
Finally, even if we end up interpreting and practicing the responsibility to protect

concept in the form of military interventions for the secessionists independence,
which is highly unlikely, Ahtisaari himself excluded the possibility that Kosovo in
that sense could remain a unique case, insofar as he stressed that independence
shall be the legal sanction for a dictatorial leadership in any country [emphasis
mine],93 that behaved the way Miloevi did with its minority population.
6 The Immense UN Involvement Argument

The last typical argument that is employed for the justication of the unique case
thesis concerns the alleged unprecedented involvement of the United Nations in
Kosovo.94 It is often used as the starting premise for the subsequent conclusion that,
since Serbias eective rule over the province was suspended for such an extended
period95 of time, the only sustainable nal outcome would be to acknowledge this
new reality and recognize Kosovos independence. This argument is best summa-
rized in Ahtisaaris 2007 Report:
US Deputy Secretary of State Strobe Talbott, Address at the Aspen Institute, August
. Accessed May . http://www.freeserbia.net/Documents/Kosovo/Talbott.
html.
Ignatie, note above, . Mllerson also points out that: the use of force for humani-
tarian purposes, if at all considered lawful, has to be limited to those purposes and must
not to go beyond them. Rein Mllerson, Precedents in the Mountains: On the Parallels
and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia, Chinese Journal
of International Law (): .
Interview with Mr. Ahtisaari, CNN, December .
As put by Hilpold: [t]he special circumstances characterizing the administration by
UNMIK render the whole situation totally particular. Peter Hilpold, What Role for
Academic Writers in Interpreting International Law? A Rejoinder to Orakhelashvili,
Chinese Journal of International Law (): .
Rice, note above.
For the past eight years, Kosovo and Serbia have been governed in complete separation.
The establishment of the United Nations Mission in Kosovo (UNMIK) pursuant to reso-
lution 1244 (1999), and its assumption of all legislative, executive and judicial authority
throughout Kosovo, has created a situation in which Serbia has not exercised any govern-
ing authority over Kosovo. This is a reality one cannot deny; it is irreversible.96
Using MacCormicks terminology,97 one might notice that the rst part of this ar-
gument refers to the operative facts (immense involvement of the UN), while the
second one concerns the normative consequences (recognition of the new reality
in the form of the right to independent statehood).
As for the operative facts part of the argument, rst, it should be borne in mind
that currently there are various forms of the United Nations involvement in dier-
ent parts of the world.98 Some of these missions include heavy military presence of
the UN peacekeeping troops (e.g. United Nations Interim Force in Lebanon, UNI-
FIL, which currently has 12,133 military personnel, or United Nations Mission in the
Sudan, which at the moment has 9,955 total uniformed personnel, including 8,806
troops, 477 military observers and 672 police ocers), while in some cases the UN
bodies and representatives decisively aect the civilian aairs of the respective pol-
ity (e.g. UN High Representative for the Implementation of the Peace Agreement on
Bosnia and Herzegovina). Furthermore, the UN involvement does not amount only
to the immediate presence military and/or civilian in certain areas, but also in
the active deliberative engagement of the relevant UN bodies in an attempt to con-
tribute to the solving of some conict situations around the world.
On the other hand, could one really qualify the United Nations Mission in Koso-
vo (UNMIK) as unprecedented in terms of the period of engagement?99 I would say
hardly. For instance, United Nations Peacekeeping Force in Cyprus (UNFICYP) was
established in 1964 to prevent a recurrence of ghting between the Greek Cypriots
and Turkish Cypriots and to contribute to the maintenance and restoration of law
and order and a return to normal conditions. Though substantially decreased in
number (currently, 924 total uniformed personnel, including 856 troops and 68 po-
lice; supported by 40 international civilian personnel and 111 local civilian sta ), this
mission is nevertheless still active on this divided island. As for other aspects of the
UN involvement in the Cyprus frozen conict, it should be added that from 1964 un-
til 2009, there were 129 UN Security Council Resolutions and a number of General
Assembly resolutions, including some on missing persons and human rights. Finally,

Neil MacCormick, Institutions of Law An Essay in Legal Theory (Oxford: Oxford Uni-
versity Press, ).
The list of all current UN peacekeeping missions are available at http://www.un.org/en/
peacekeeping/currentops.shtml.
Hilpolds words that: the UN administration had already lasted much longer than
originally envisaged illustrate this point. Peter Hilpold, The Kosovo Case and Inter-
national Law: Looking for Applicable Theories, Chinese Journal of International Law
(): .
on 24 April, 2004, the peoples of Cyprus were asked to choose between ratifying and
rejecting a 5th revision of the United Nations proposal to settle the Cyprus dispute,
which is widely known as the Annan Plan for Cyprus. However, the plan failed due
to the rejection of the Greek Cypriots, who largely (75,83 ) voted against it.
Following the reasoning of those who argue in favor of Kosovos independence,
one might expect that 45 years of the UN involvement in Cyprus, during which the
central government did not have any control over its northern part, as well as the
uncooperative role of the majority community in the referendum process, would
trigger the reaction of the international actors in terms of attaching normative con-
sequences to these operational facts and recognizing the self-proclaimed indepen-
dence of the Turkish part. As we all know, this was not the case. On the contrary,
Cyprus even entered the European Union as a completely divided country.100
There is more, however, to the operative facts part of the argument in Kosovo
case. The UN involvement was immense not only in terms of the prolonged civil-
ian and military rule over the province, but also in terms of the engagement in the
negotiation process that was supposed to lead to a mutually acceptable agreement.
Since all the potentials for such an agreement were exhausted, the independence of
Kosovo became the only viable option (normative consequences). Ahtisaaris 2007
report, once again, illustrates this point:
[A]fter more than one year of direct talks, bilateral negotiations and expert consultations,
it has become clear to me that the parties are not able to reach an agreement on Kosovos
future status... Throughout the process and on numerous occasions, both parties have
rearmed their categorical, diametrically opposed positions: Belgrade demands Kosovos
autonomy within Serbia, while Pristina will accept nothing short of independence... It is
my rm view that the negotiations potential to produce any mutually agreeable outcome
on Kosovos status is exhausted. No amount of additional talks, whatever the format, will
overcome this impasse... The time has come to resolve Kosovos status. Upon careful con-
sideration of Kosovos recent history, the realities of Kosovo today and taking into account
the negotiations with the parties, I have come to the conclusion that the only viable op-
tion for Kosovo is independence, to be supervised for an initial period by the international
community.101
It is interesting to see what normative consequences the EU has drawn from the afore-
mentioned operative facts: In light of Protocol of the Accession Treaty Cyprus
as a whole entered the EU, whereas the acquis is suspended in the northern part of the
island (areas not under eective control of the Government of the Republic of Cyprus).
This means inter alia that these areas are outside the customs and scal territory of
the EU. The suspension has territorial eect, but does not concern the personal rights
of Turkish Cypriots as EU citizens, as they are considered as citizens of the Member
State Republic of Cyprus. Status of the Turkish Cypriot community under this regime
accessed February . http://ec.europa.eu/enlargement/turkish_cypriot_commu-
nity/index_en.htm.
A caveat should be made with respect to the way these negotiations were conducted
by Ahtisaari, who managed in a highly similar case of Aceh to obtain the aforemen-
tioned mutually acceptable political settlement.102 In one of the interviews dedicated
to his engagement in Aceh, he said that [t]he question for the mediator is one of bal-
ance, how to best achieve a fair deal for both. He illustrated that point in the follow-
ing way: It was clear that the government was not oering independence and I had
to work out with GAM how they could obtain the things they wanted, which they
thought independence would have fullled.103 In an 2008 interview to CNN, Ahti-
saari explained how balance and fair deal were to be achieved in Kosovo negotia-
tions, where the Serbian government was also vehemently opposed to independence
of its province: Everyone knew that independence was coming. But (Serbian) Prime
Minister Kostunica and company behaved like they wouldnt have heard what was
told to them.104 One cannot escape the impression that Ahtisaari blatantly gave up
his very own principles of bona de mediating in Kosovo negotiations, by favoring
the maximalist demands of one side Kosovo Albanians.
Ahtisaaris plan eventually was not supported in the Security Council, and the
Contact Group proposed the formation of a Troika of senior mediators in order
to instigate a new round of negotiations. After 120 days of intensive consultations
with both parties, no mutually acceptable agreement was achieved. According to
the Written Statement of the USA, submitted to the Court, [w]ith the failure of the
Troika talks and the political process under Resolution 1244 to achieve an agree-
ment between the two parties, it essentially became a matter of when, not whether,
a declaration of independence by Kosovo would occur.105 Similarly, the UK Written
Statement stresses that Kosovos Declaration of Independence of 17 February 2008
was not a rush to judgment It came at the end of an exhaustive search for other
alternatives, conducted by thoughtful and expert interlocutors who explored every
other conceivable avenue that might have led to a dierent outcome. They found
nothing that could be sustainable.106
The question is, thus, whether such normative consequences the right of one
party to the negotiations to unilaterally declare the most preferable political out-
come can be drawn from the operative fact that two rounds of negotiations were
In fact, in the moment of negotiations, there were some considerable dierences be-
tween the two cases. Namely, the prospects for the full exercise of substantial minority
autonomy were far bigger in Serbia, which was categorized as Free Country in the
Freedom House annual report, than in Indonesia, which was classied as Partly
Free. See http://www.freedomhouse.org/template.cfm?page=&year=&count
ry=. Accessed June .
Delivering peace for Aceh, an interview with President MarttiAhtisaari. Accessed
May . http://www.c-r.org/our-work/accord/aceh/ahtisaari.php.
Interview with Mr. Ahisaari, CNN, December . Accessed June http://
www.youtube.com/watch?v=rHvpgj-ns-Mandfeature=related. Written Comments of
Serbia, July , .
Written Statement of United States of America, April , .
Written Statement of United Kingdom, April , .
unsuccessful? Leaving aside that such an outcome is itself in plain contradiction to

the Security Councils deliberate usage of the term settlement to describe the end
result of the envisaged political process,107 the answer to the previous question must
be negative.108 Otherwise, Palestinians would have long ago acquired the right to
unilaterally declare the birth of its state, since a numerous rounds of political nego-
tiations with Israel (Oslo Accord, 1993; Camp David Summit, 2000; Taba Summit,
2001; Road Map for Peace, 2002; Arab Peace Initiative, 2002) ended up in failure. As
is well-known, any such initiative by the Palestinians, including the recent one by the
President Mahmoud Abbas, was strongly opposed by the very countries that support
Kosovos UDI.109 Accordingly, the fact that those countries perceive the Kosovo case
as somehow unique is not in itself conclusive evidence that it can be really treated
as such.
7 Kosovo: A Unique Case or a Precedent?

The whole point of raising the unique case thesis is that the recognition of Kosovos
unilateral act of independence should not be regarded as a precedent for other cases.
According to the Oxford Dictionary of Law, precedent is a judgment or decision
used as an authority for reaching the same decision in subsequent cases. The adju-
dicating body in a future case is not bound by all aspects of a previous decision but
only by those parts of the judgment that constitute the principles of the decision (ra-
tio decidendi) and are not merely passing comments (obiter dicta).110 While assert-
ing that Kosovo should not be treated as a precedent, proponents of the unique case
thesis disagree as to what part of the Kosovo case facts or legal outcome shall
be treated as unique. Hence, the representative of the UK before the Court stressed
that:
[c]ontrary to the mischaracterization of this argument by some, we do not assert that Ko-
sovo is to be judged by special rules of international law, or that it stood outside of the law.
We do not assert a sui generis legal rgime. The United Kingdoms contention is that, for
Written Comments of Serbia, July , .

There is here a more general problem of unilaterally dissolving an UN administered
regime. As pointed by the Serbian representative before the Court, Professor Zimmer-
man: It would constitute a most dangerous precedent not only with regard to general
international law, but also with regard to the system of collective security provided for
by the Charter, if States were now to learn that the setting-up of such a United Nations
administration constitutes nothing but a rst step in a process of secession by the ter-
ritory concerned, otherwise not provided for in international law. Verbatim Record,
Tuesday December , CR /, .
See, Victor Kattan, UDI wont mean Palestinian statehood. Accessed May .
http://www.guardian.co.uk/commentisfree//nov//palestinian-statehood-udi.
Oxford Dictionary of Law (Oxford: Oxford University Press, ). To be sure, what can
count as ratio decidendi raises serious debates among common law jurisprudents. See,
Roger Shiner, Ratio Decidendi IVR Encyclopedia. Accessed May . http://ivr-
enc.info/index.php?title=Ratio_Decidendi.
reasons of the conuence of very particular factual circumstances, the situation of Kosovo
does not create a precedent elsewhere.111
To say this, however, is to pinpoint a highly trivial thing, that no case is identical to
some other, in terms of its specic socio-historical facts and developments. Hence,
the real challenge stems from the argument advanced, for instance, by ten former
foreign ministers, who state that Kosovos unique factual situation has required a
creative solution, which should not create a precedent for other unresolved con-
icts [emphasis mine].
The purpose of this chapter was to demonstrate that the arguments commonly
used to support the unique case thesis cannot be sustained. It turned out that the
alleged peculiarities of the Kosovo case are, in Mllersons words, in the eye of the
beholder. That is, [w]hether certain situations, facts or acts can serve as precedents
depends to a great extent on whether one is interested in seeing them as precedents
or not.112 Moreover, from the point of view of an international legal scholar, it seems
incontestable that, in a consensual legal order, sui generis situations, that is, situa-
tions regulated on a footing deviating from the general legal framework, could be
viable only where pertinent States agree about that.113 If such an agreement is miss-
ing, as is obviously the case with Kosovo, than the mere political will of a group of
states to treat it as unique will have no binding force for those States that refuse to
see Kosovo as a sui generis entity. When argued [i]n political terms, action always
provokes reaction and sui generis entities could be multiplied,114 as immediately
demonstrated by subsequent developments in South Ossetia and Abkhazia.
Finally, there is an even more profound legal problem with the argument that the
proposed legal outcome of the Kosovo case (independent statehood) should not
serve as a precedent for other cases. It is completely contrary to the logic of prec-
edent to claim that no case could be of such a nature as to justify the implementation
of ratio decidendi of the already adjudicated case. Consequently, even if the legal
outcome of the Kosovo case cannot serve as a precedent for any other situation
in the world today,115 on the account that they dier in certain important aspects,
which is highly debatable,116 to exclude the possibility that such an outcome aect
Verbatim Record, Thursday December , CR /, .

Mllerson, note above, .
Alexander Orakhelashvili, Kosovo and the Pitfalls of Over-Theorizing International
Law: Observations on Hipholds Rejoinder, Chinese Journal of International Law
(): .
Alexander Orakhelashvili, The Kosovo UDI between Agreed Law and Subjective Per-
ception: A Response to Hiphold, Chinese Journal of International Law (): .
Rice, note above.
As put by Mllerson: All these secessionist conicts and situations, notwithstanding
many dierences, have something quite essential in common: there is always a group of
people who, being a part of a bigger political entity, want to secede from that entity in
order to form an independent State or become a part of another political entity. note
above, .
some future cases would be not less then to deny it the character of a legal rule. As
the Cyprus representative had noted in the Oral proceedings, it was up to the Court
to dispel the potentially disastrous eects of such reasoning:
If the Court were once to say that it could in eect suspend the operation of the law in
relation to one case because of its particular characteristics, it would establish, in the
clearest possible terms, a precedent for suspending the operation of the law in relation to
any case because of its particular characteristics If the Court were to base its opinion
on a characterization of Kosovo as a situation sui generis, it would cease to be a court of
law and would take on the role of the other principal organs of the United Nations that
of deciding how a particular situation should be handled politically.117
In rendering its opinion, the Court seemed to disregard altogether the unique case
thesis, because no such reference can be found in the text.118 Does this, then, imply
that the Courts opinion indeed sets some dangerous precedent for similar cases
around the world? Not necessarily so, because, as we saw, the Court had found it-
self not invited to address all those intricate legal issues that triggered an unprec-
edented world interest in this case. However, it is yet to be seen what will be legal
and political implications of some of the Courts contentious ndings, which are
of rather general character, such as the conclusions that the scope of the principle
of territorial integrity is conned to the sphere of relations between States, and,
hence, does not concern non-state actors, including rebellion by ethnic minorities;119
that general international law contains no applicable prohibition of declarations of
independence;120 or, that persons who acted together in their capacity as represen-
tatives of the people of some territory under the UN interim regime of governance
are not bound to act within the framework of powers and responsibilities established
to govern the conduct of some provisional institutions.121
All this, on the other hand, will most probably not signicantly aect the further
usage of the political rhetoric of the unique case thesis in the persuasion strategy
of those states that recognized Kosovo as an independent state. The Kosovo case is
thrown back again to the global political arena, where it is supposed to be settled
by political, rather than legal merits, not least due to the Courts lack of courage to
tackle some substantive issues around which parties to the dispute centered their
key legal arguments.

This thesis is addressed only in the Separate Opinion of Judge Canado Trindade.
Kosovo (Advisory Opinion), ICJ para. ( July).
Ibid. para. .
Ibid. paras. , .
Chapter 12 The Impact of the Kosovo Precedent on
Self-Determination Struggles
SNEANA TRIFUNOVSKA
1 Introduction
In many respects Kosovo is a unique case in the post-Second World War Europe. It
is an example of the creation of an independent state as a result of joint exercise on
the international level of political and military power through individual and col-
lective actions of the Western states and as such it is being referred to as a guided
independence.1 Immediately after the Declaration of Independence by the Kosovo
Assembly in February 2008, one of the major concerns was whether, to which extent
and what kind of impact it could have on the future claims for independence and on
the perception of the international community regarding the present status of inter-
national law relevant for the issues of protection of minorities, self-determination
and secession. This chapter will discuss a frequently raised question of whether or
not Kosovo presents a precedent. It is the position of the author that Kosovo is not
a precedent, but, as the majority of authors agree, it will have certain impact on the
future self-determination struggles and on the perception of individual states on
this. This view remained unchanged after issuing of the rather peculiar ICJ Advisory
Opinion Accordance with International Law of the Unilateral Declaration of Inde-
pendence in Respect of Kosovo on 22 July 2010,2 which, is unlikely to be remembered
as one of the Courts better attempts to articulate and clarify the law.3
In the case of Kosovo the term guided independence has a twofold meaning: (a) it can
apply to the period before the declaration of independence and to the actions of the UN
and the Western states leading to the independence, and (b) it can be used for the post-
declaration period to denote a large-scale international (EU-NATO-UN) involvement,
in supervising and supporting Kosovo institutions.
See Accordance with International Law of the Unilateral Declaration of Independence
in Respect of Kosovo (Advisory Opinion) ICJ ( July). Accessed September
. http://www.icj-cij.org/docket/ les//.pdf.
Curtis Doebbler, The ICJ Kosovo Independence Opinion: Uncertain Precedent, Jurist,
Legal News and Research. Accessed September . http://jurist.org/forum///
the-icj-kosovo-independence-ruling-an-uncertain-precedent.
2 A General Remark on the Concept of Precedent and its Role in the

Kosovo Case
In its general meaning the word precedent is dened as, a previous instance taken
as an example or rule by which to be guided in similar cases or circumstances; an
example by which a comparable subsequent act may be justied.4 In order to have
a precedent it is necessary that there are similarities and certain analogy between
two situations so that the dealing with subsequent situation can be justied by the
same or similar arguments which were used in the preceding one. In international
law and relations the word precedent has a dierent connotation from national law.
In political science it is used, to refer to a past event that could be politically per-
suasive or may be used in diplomatic dialogue.5 Lawyers, however: have a stricter
understanding of the word and use it when a past event states a rule of law that is to
be applied in the current case [W]hile as a formal matter the precedent [in interna-
tional law] is not legally binding, as a practical matter international lawyers will try
to maintain a coherent and consistent set of rules across similar cases.6
If considered from the point of view of political science it seems very dicult to
consider Kosovo to be a precedent. If used in international relations as part of diplo-
matic strategy and dialogue, Kosovo independence could be primarily of rhetorical
signicance, with a larger chance to remain meaningless. However, this will depend
to a large extent on the specic circumstances of the particular situation, not nec-
essarily completely overlapping with those of Kosovo. Disagreement regarding the
signicance of the Kosovos Declaration of Independence and rather opposing o-
cial views expressed in the aftermath of the Declaration, support this observation. A
majority of the Western countries hold that Kosovo is not a precedent, but a unique
case because of the historical circumstances creating conditions that have nally led
to its independence which in their view was the only possible outcome given the long
history of mistreatment of Albanian minority in the province. In short, the histori-
cal context within which the Kosovo independence is situated could not be ignored:
the disintegration of Yugoslavia leading to the creation of new independent States.
Oxford English Dictionary. Accessed October . http://dictionary.oed.com/

cgi/entry/?query_type=word&queryword=precedent&first=&max_to_
show=&sort_type=alpha&result_place=&search_id=ceLL-oWaExl-&hilite=
.
Christofer J. Borgen, Is Kosovo a Precedent? Secession, Self-Determination and
Conict Resolution. Summary of presentation given at an EES Noon-Discussion,
June . Accessed September . http://webcache.googleusercontent.com/
search?q=cache:gCvgxPUqIJ:www.wilsoncenter.org/topics/pubs/MRBorgen.doc+
Is+Kosovo+a+PrecedentF+Secession,+Self-Determination+and+Conict+Resolution
&cd=&hl=nl&ct=clnk&gl=nl>.
Ibid.
Chapter 12, Sneana Trifunovska The Impact of the Kosovo Precedent on Self-Determination Struggles 377
The independence of Kosovo is part of this framework and can thus in no way be
considered to set a precedent.7
According to the United States, Kosovo is clearly a special case and has been
treated as such in the UN since 1999. The violent and non-consensual break-up of
Yugoslavia, Miloevis policies of repression and ethnic cleansing, which led the
international community to act; the adoption of Security Council Resolution 1244
(1999) under which Serbia has long been prevented from exercising normal govern-
mental authority in Kosovo; and the United Nations-facilitated political process to
help determine Kosovos future status are all factors that make the situation in Koso-
vo dierent from other conicts or situations and one that does not set a precedent
for other regions.8 For all the above mentioned reasons the path taken with regard
to Kosovo will not be followed in other cases unless strict conditions for the exercise
of external self-determination are ful lled.
Russia and China, joined by some other states, on the other hand, claim that
Kosovo has set a precedent aecting the basic foundations of international legal sys-
tem and the future practice.9 According to Russia, which continued to recognize
Serbia within its internationally recognized borders, the Declaration of Indepen-
dence by the local Assembly of Kosovo was a blatant breach of the norms and prin-
ciples of international law and above all of the UN Charter that undermined the
foundations of international relations.10 Similarly, the Chinese Ambassador to the
United Nations expressed, grave concern, over Kosovos Unilateral Declaration of
Independence and pointed out the signicance which it might bear on the peace,
security and stability of the Balkan region and even Europe at large,11 while accord-
ing to the President of Serbia, this arbitrary decision [of the Kosovo Assembly] rep-
resents a precedent which will cause irreparable damage to the international order
[and] runs afoul of the rst principle of the Charter of the United Nations the
sovereign equality of all Member States in the most direct way.12
One should have hoped that the ICJ would in its Advisory Opinion of 22 July
2010, bring more clarity in determining whether and to what extent both the Kosovo
Declaration of Independence and its rapid acceptance by some Western states have
rewritten the rules of international law. However, the hesitant position taken in the
Advisory Opinion proved that the ICJ was not willing to play any instrumental role
in this respect.
See, Statement of the Permanent Representative of Belgium in the Security Council, UN

Doc. S/PV/, ( February ).
See Statement of the USA Permanent Representative in the Security Council, UN Doc.
S/PV/, ( February ).
Kosovos Inevitable Independence sets Important Precedent for Transdniestria The
Tiraspol Times, January . Accessed September . http://www.tiraspolt-
imes.com/node/.
See UN Doc. S/PV. ( February ).
Ibid.
UN Doc. S/PV/ ( February ), .
3 What in the Case of Kosovo could Qualify as a Precedent?

As mentioned at the beginning, the discussion on whether Kosovo is a precedent
started after the Declaration of Independence by the Kosovo Assembly and referred
mostly to the very Declaration and to the serious legal questions which this act in-
volves, such as the right to external self-determination and to secession of an ethnic
group. The period preceding the Declaration of Independence, the NATO military
intervention carried out in the absence of the Security Council authorization and the
creation of a sweeping international administration by the Security Council which
were unprecedented in their scope and content, were not much discussed in the
terms of precedent. However, both the NATO intervention and the UN administra-
tion were in their character and scope unparalleled and at the same time indispens-
able sequences leading to the independence of Kosovo: [T]he path to independence
for Kosovo was highly contingent on a unique constellation of factors, particularly
the support of the Western states. Had the Kosovars not successfully courted the
support of the key Western states then Kosovo would likely remain a constituent
province of Serbia.13 For this reason some authors argue that a peoples right to
self-determination should not be debated, but rather the way in which it is achieved.
The whole process leading to the Declaration of Independence of Kosovo, is being
driven as a sort of crusade, to culminate in an imposed solution rather than a negoti-
ated one between the sides.14 Therefore, it is this imposition, a de facto annexation
of part of a sovereign state, which should be the precedent not the resulting state.15
Taking into consideration both the preceding and the facts following the Decla-
ration of Independence, it becomes obvious that there is no straightforward answer
to the question whether Kosovo independence as such has created precedent or not.
For this reason and in an attempt to de ne what in the case of Kosovo could qualify
as precedent, this paper will look at three dierent aspects: (a) the NATO military
intervention in the Federal Republic of Yugoslavia (Serbia and Montenegro) from 24
March April-9 June 1999, (b) the UN Security Council resolution 1244 (1999) of 10
June 1999, and (c) the Kosovo Declaration of Independence of 17 February 2008 and
international recognition by a number of Western countries. This will be done by
taking into consideration the ICJ Advisory Opinion of 22 July 2010 and its handling
of the question posed by the UN General Assembly resolution 63/3 of 8 October
2008.
Aidan Hehir, Independence, Intervention and Great Power Patronage: Kosovo, Geor-
gia and the Contemporary Self-Determination Penumbra, Amsterdam Law Forum :
(). Accessed August . http://ojs.ubvu.vu.nl/alf/article/view//.
Ilana Bet-El, A Bad Looking Model, The Guardian, April . Accessed August
. http://www.guardian.co.uk/commentisfree//apr//abadlookingmodel.
Ibid.
a The NATO Military Intervention

NATO started its military intervention in the Federal Republic of Yugoslavia on hu-
manitarian grounds without invoking any clear legal basis for it. By many the inter-
vention was seen as, formally illegal [but] morally necessary.16 Neither the Security
Council authorized it nor the NATOs legal rules provided a possibility for such a
military intervention. Given its own functional limitations due to the dierences in
the views of the permanent members, the Security Council was not able to reach an
agreement and to issue an authorization for the use of military force in Yugoslavia.
Similarly, none of the NATO legal documents could provide a legal basis for the
intervention. Article 5 of its basic legal document, the North Atlantic Treaty, allows
the use of force in self-defence based on Article 51 of the UN Charter only in case a
NATO member State in Europe or North America is subject to an armed attack.17
Further on, in Article 6, the Treaty denes the geographical scope of the possible
application of Article 5 which is clearly limited to the territory i.e. jurisdiction of the
member States. No provision of the Treaty envisages any military activity out of the
dened geographic area. In the rst 44 years of its existence NATO had never used
military force. It was only since the end of the Cold War when NATO found itself
in search of its new identity and raison dtre that it started changing its legal rules
by political decisions of its member States which led to the creation of an organiza-
tion considerably dierent from its initial structure and mandate. This process of
transforming and broadening the Alliances powers has still not been completed,
though the main direction in which it is developing has by now become clear. From
an Organization based on Article 51 of the UN Charter and supposed to act only in
response to an armed attack against its member State, NATO has changed into an
all-around military and security Organization with the purpose not only to ensure
the defence of its members but also to contribute to peace and stability in the whole
Euro-Atlantic area.18 The rst activities of the new type started at the beginning of
1990s when the Organization was called upon to provide assistance in the UN ef-
forts to restore peace in Bosnia and Herzegovina. This assistance included the use
of military force for the rst time out-of-area, albeit upon the UN authorization.
Accordingly, in April 1993 NATO carried out Operation Deny Flight to enforce the
no-y zone in Bosnia and Herzegovina. The mandate was given by the UN Security
Council Resolution 816 (1993).19 However, it seems that for the rst real air campaign,
the Operation Deliberate Force (from 30 August-14 September 1995) the UN has not
provided an authorization which otherwise was required by the dual-key approval
Martti Koskenniemi, The Lady Doth Protest Too Much Kosovo, and the Turn to
Ethnics in International Law, Modern Law Review (): .
Article of the North Atlantic Treaty, adopted in Washington in .
The Alliances Strategic Concept, Approved by the Heads of State and Government par-
ticipating in the meeting of the North Atlantic Council in Washington DC, April
, para. .
SC Resolution , UN Doc. S/RES/ ( March ).
process established between the UN and NATO.20 Though it was claimed that the
operation was taken to support the relevant UN Security Council resolutions which
could be interpreted that there was some kind of implicit authorization, its primary
goal was to compel, an end to Serb-led violence in Bosnia and Herzegovina21 and
to diminish the Serb military capacity in order to enforce a peaceful solution (and
probably thereby to underpin the relevant Security Council resolutions). By the de-
struction of the main Bosnian Serb military strategic points, the way was paved to
the signing of the Dayton Peace Agreement in December 1995 and to the deploy-
ment of IFOR, a NATO-led military operation authorized by the UN Security Coun-
cil Resolution 1031 (1995). One of the important results of the Operation Deliberate
Force was that it, eectively ended the out-of-area debate that had dominated intra-
Alliance discussions on NATOs role since the end of the Cold War,22 and made
obvious its new character.
Therefore, the use of military force that took place four years later in the territory
of the Federal Republic of Yugoslavia, i.e. Serbia, was not completely a primeur for
NATO, however with regard to both reasons for (to halt the humanitarian catas-
trophe that was then unfolding in Kosovo23) and circumstances under which it took
place (clearly without previous Security Council authorization) it was completely
new. Notwithstanding its uniqueness this intervention should be considered rather
in the context of the on-going NATO transformation than a precedent. The 1999
Alliances Strategic Concept clearly reects the transformation of NATO from an
Alliance based on Article 51 of the UN Charter and strictly limited to the within
the area military activities/responses, into an Alliance which pursues, its policy of
preserving peace, preventing war, and enhancing security and stability, and which
seeks, in cooperation with other organizations to prevent conict or, should a cri-
sis arise, to contribute to its eective management, consistent with international
law, including through the possibility of conducting non-Article 5 crisis response
operations.24 In other words, in the event of crisis which in the assessment of
NATO might jeopardise Euro-Atlantic security and could aect the security of
its members, the Alliances military forces may be called upon to conduct crisis
response operations.25 The Strategic Concept, adopted at the 50th anniversary of
the NATOs creation that overlaps with the beginning of the military intervention in
See also Tarcisio Gazzini, The Changing Rules on the Use of Force (Manchester: Man-
chester University Press, ), -.
Accessed September . http://www.nato.int/cps/en/natolive/topics_.
htm.
Ryan C. Hendrickson, Crossing the Rubicon, NATO Review, Autumn , . Ac-
cessed September . http://www.nato.int/docu/review//issue/o print_au-
tumn_eng.pdf.
Accessed September . http://www.nato.int/issues/kosovo_air/index.html.
The Alliances Strategic Concept, Approved by the Heads of State and Government par-
ticipating in the meeting of the North Atlantic Council in Washington DC, April
, para. .
Ibid. para. .
Yugoslavia in April 1999, made clear that in the future military activities/operations
NATO would not necessarily need the UN authorization. So, one could agree that
though the NATO military operation in Kosovo (Operation Allied Force) in 1999
overshadowed the Operation Deliberate Force in 1995 the later may have contributed
more to NATOs post-Cold War transformation than any single other event.26 It is
also not a precedent in the sense that NATO will consider itself obliged to intervene
in the same manner in other similar situations. In the future NATO will maintain
this position of free choice and will continue to react dependent on the conditions
of each particular situation on a case-by-case basis though under more strict guide-
lines. The Recommendations on A New Strategic Concept of May 2010 mention
a number of such guidelines and/or criteria. Among them of importance are: the
extent and imminence of a danger a situation poses to Alliance members; the ex-
haustion or apparent ineectiveness of alternative steps to deal with a situation; the
readiness of partners to help in ensuring an eective and timely remedy to the prob-
lem at hand; the collateral impact on other NATO missions and needs, as well as the
foreseeable consequences of inaction.27
Similarly, one could also conclude that the impact of the NATO intervention on
the development of international legal rules on the use of force remains insigni-
cant. The fact that within NATO a consensus on intervention could be reached by
all (then 19) member states did not mitigate the international legal criteria allowing
the use of force. Only a limited state practice supports the claim that states might
resort to military action to enforce decisions taken by the Security Council to tackle
a threat to international peace and security even without being authorized by the
Security Council:28
The rm opposition of the overwhelming majority of the international community has

clearly prevented a further evolution or better involution of the collective security sys-
tem. Obtaining authorization by the Security Council before resorting to non-defensive
force remains a legal requirement and not merely a matter of political convenience.29
In addition, in legal terms the NATO bombing in Yugoslavia could not produce any
benets to any party to the conict in Kosovo. This is because of the circumstances
and conditions under which it took place and the application of the general principle
of international law ex injuria non oritur (a wrongful act cannot become a source
of advantages). According to ICJ Judge, A.A. Canado Trindade, this principle is ap-
Ryan C. Hendrickson, Crossing the Rubicon, NATO Review, Autumn , . Ac-

cessed September . http://www.nato.int/docu/review//issue/o print_au-
tumn_eng.pdf.
NATO : Assured Security; Dynamic Engagement, Analysis and Recommenda-
tions of the Group of Experts on A New Strategic Concept, May , -. Ac-
cessed September . <http://www.nato.int/strategic-concept/expertsreport.pdf>.
Tarcisio Gazzini, The Rules on the Use of Force at the Beginning of the XXI Century,
Journal of Conict and Security Law (): .
Ibid. .
plicable to all grave breaches which took place in Kosovo, including the unwarranted
use of force in the bombings of Kosovo (and without Security Council authoriza-
tion) and causing numerous innocent victims in the civilian population, applies.30 In
his view, therefore, the Security Council resolution 1244(1999) could not be read as
endorsing wrongful acts of any origin and kind nor as taking advantage of them.31
However, one should note that, while in formal legal terms that might be so, in re-
ality NATO bombing was of a vital importance in creating the conditions under
which Security Council Resolution 1244 (1999) could have been taken, depriving the
Yugoslav authorities of governmental powers in Kosovo and, nally leading to the
declaration of Kosovo independence. It should also be observed that by its military
intervention in Yugoslavia NATO has not set a good example that will quickly be
forgotten. One can imagine that some other international organizations and states
could follow the example and, assert a similar right to use force, and perhaps in
circumstances where NATO and the rest of the international community do not
consider the use of force to have the moral justication that the general international
toleration of Operation Allied Force suggest existed in relation to Kosovo.32
b The Security Council Resolution 1244 (1999)

The Security Council Resolution 1244 (1999) marked both the end of the NATO mili-
tary intervention in Yugoslavia and the beginning of an international administration
in Kosovo. The type of the international administration in Kosovo presents a unique
case in the history of the United Nations. Like the NATO military intervention,
it proved also to be instrumental in the whole process leading to the declaration
of independence by the Kosovo Assembly, despite the statement that [t]he United
Nations [had] maintained a position of strict neutrality on the question of Koso-
vos status.33 This, for at least two reasons: First, by the adoption of Resolution 1244
(1999) the Security Council legalized the conditions created by the NATO bombing
(which is not to say that it endorsed the military operation as such).34 Second, (a)
Judge Canando Trindade, Separate Opinion, Kosovo Opinion, paras. -.

Ibid. paras. -.
Vaughan Lowe, International Legal Issues Arising in the Kosovo Crisis, The Interna-
tional and Comparative Law Quarterly (): .
The Report of the Secretary General on the United Nations Interim Administration in
Kosovo, UN Doc. S// ( July ), para. .
This should not be understood as ex post facto authorization of the military intervention
as such: the Security Council was prevented from taking any position as to the neces-
sity and lawfulness of the military initiatives, either in the sense of authorizing or
rather approving them, or of condemning them. Because of insurmountable contrasts
existing among its permanent members, it could merely acknowledge the fait accompli,
support the outcome of these initiatives, and attempt to restore to the extent that it
was possible its authority in the post conict or post confrontation environment.
See Tarcisio Gazzini, The Changing Rules on the Use of Force (Manchester: Manchester
University Press ), -.
by the establishment of the civil administration in Kosovo, supported by a strong

NATO-led military presence, and (b) by the exclusion of all sovereign powers of the
Yugoslav and Serbian authorities in Kosovo, the Security Council created conditions
which made the restoration of any of these powers by those authorities not only un-
likely but rather impossible.
Resolution 1244 (1999) was adopted with an objective to stabilize the situation in
Kosovo and to create a temporary regime until a nal settlement was achieved be-
tween the parties concerned. This was also conrmed in the ICJ Advisory Opinion.35
In the Preamble of the Resolution the Security Council rearmed, the commit-
ment of all Member States to the sovereignty and territorial integrity of FR Yugo-
slavia and the other States of the region. Reference to the sovereignty and territorial
integrity of Yugoslavia is also made in Annexes 1 and 2 of the Resolution. At the
same time, it established an international civil administration (UNMIK) with the
mandate to, provide an interim administration for Kosovo under which the people
of Kosovo [could] enjoy substantial autonomy within the Federal Republic of Yugo-
slavia, and which [would] provide transitional administration while establishing and
overseeing the development of provisional democratic self-governing institutions to
ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.36 In
concrete terms, the administration was given the powers, inter alia:
1. to promote the establishment, pending a nal settlement, of substantial au-
tonomy and self-government of Kosovo;
2. to organize and oversee the development of provisional institutions for demo-
cratic and autonomous self-government pending a political settlement;
3. to transfer, as these institutions are established, its administrative responsibili-
ties while overseeing and supporting the consolidation of Kosovos local provi-
sional institutions and other peace-building activities.37
In an reaction to the far-reaching powers of international administration, the UK

Permanent Representative in the Security Council, pointed out that in its Resolu-
tion 1244 (1999) the Security Council took an unprecedented step and, eectively
deprived Belgrade of the exercise of authority in Kosovo38 A few months later, in
October 1999, the Security Council followed the Kosovo model in establishing a
similar international administration in East Timor, however under rather dierent
circumstances and conditions.39
See Kosovo Opinion, para. .

See paragraphs - of UN Security Council Resolution , UN Doc. S/RES/ (
June ).
Ibid. para. (a), (c) and (d).
UN Doc. S/PV. ( February ), .
United Nations Transitional Administration in East Timor (UNTAET) was established
by the Security Council Resolution , UN Doc. S/RES/ ( October ). See
also Security Council Resolution , UN Doc. S/RES/ ( September ) au-
thorizing the establishment of a multinational force under a unied command and in-
As a matter of fact, Resolution 1244 (1999) did not contain any suggestion re-
garding the status of Kosovo. It neither implied that Kosovo should either continue
to be part of Serbia nor should it become an independent state. Nonetheless, from
the rearmation of the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia one could expect that Kosovo would remain within the Serbian bor-
ders albeit with quite dierent and much larger autonomy and self-government. The
question on the status of Kosovo had to be settled through negotiations between
Serbia and Kosovo, which was, from November 2005 facilitated by the Secretary
Generals Special Envoy, Martti Ahtisaari. However, although many have diculty
in openly recognizing it, the wide-ranging powers of international administration,
where no role for the Yugoslav authorities was left, were leading only to one nal
solution and that was the independence of Kosovo. The mandate of the international
administration in Kosovo (and for that purpose also the mandate of international
administration in East Timor), did not only aim to establish peace in the region
but constituted, either clearly stated in or not, a prelude to statehood.40 According
to the UK Permanent Representative to the Security Council: [the new democratic
Government in Belgrade had] a duty to help resolve problems caused by Miloevi,
and they must accept that the legacy of Miloevis oppression and violence has made
it impossible for Kosovo to return to control by Belgrade.41 The concerted work of
the international community in building up governmental structures in Kosovo and
transferring governmental functions to the institutions of provisional government,
unavoidably led to the declaration of independence by the Kosovo Assembly: Koso-
vo has been an independent State in fact for some years. Moreover, there [seemed
to be] no alternative but to recognize that as a fact, and the [r]ecognition of Kosovo
was inevitable.42
With regard to the mandate and characteristics of the established international
administrations, Kosovo and East Timor are comparable cases in the sense that in
both the sovereignty of the parent states was aected. On the other hand, as above
pointed out, there are substantial dierences between the two situations. For centu-
ries East Timor had been a Portuguese colony and only for a period of 24 years (from
1976), as result of the Indonesian invasion, it was part of Indonesia. Therefore, unlike
Kosovo, East Timor should be seen as an uncompleted decolonization process for
which the right to external self-determination and independence is undisputed and,
[furthermore], the consent of Portugal and Indonesia as far as the nal status of
the territory and the transitional period administration parameters were concerned,
viting the Secretary General to plan and prepare for a UN transitional administration
in East Timor.
Antonia Zervaki, United Nations at Crossroads: International Administration of Ter-
ritories and Domestic Political Cultures, The Kosovo and East Timor Experience, Uni-
versity of Peloponnese, UNISCI Discussion Papers, No. (October ), .
UN Doc. S/PV. ( February ), .
Rafe Mair, Kosovo and Quebec, How our Balkan Decision may Haunt Us, TheTyee.
ca, April . Accessed September . http://thetyee.ca/Views////Ko-
sovoQuebec/>.
was given.43 For that reason there were also no big obstacles in the admission of
East Timor to the UN membership in 2002. The situation with Kosovo was dierent.
For centuries it was part of Serbia and considered to be its cradle: [T]he historical,
political and cultural basis of the conict did not constitute part of the late decolo-
nization process consequently, the use of the principle of self-determination as
institutionalized after the Second World War within the framework of the United
Nations was out of context. 44 In contrast to East Timor, the consent of Yugoslavia
for the setting and the deployment of international civil administration in Kosovo
was rather ambiguous, as it was achieved at the moment when NATO was still car-
rying out its military campaign.45
After having established these two administrations the UN seems not to be any
longer inclined to pursue a similar path. The UN Assistance Mission in Afghanistan
(UNAMA) set in March 2002,46 represents a substantial correction of increasing
aggregation of sovereign powers exercised in UN operations since the mid-1990s.47
However, in the terms of precedent, Security Council Resolution 1244(1999) is
nothing more than one of the decisions dictated by both the particular situation
in Kosovo and outside it, in Serbia and on the international level. Basically, for the
UN, as for NATO, it would be rather dicult to create a precedent. Each of the
cases considered by the Security Council is a specic case characterized by specic
circumstances. Its peacekeeping operations and all other missions are based on the
so-called adhocracy or ad-hoc policy. The same goes for the NATOs out-of area
activities. Such a policy enables these two organizations to provide for a response
in a manner which they deem adequate for the particular situation, but also to act
dierently in situations which might have notable similarities. Otherwise, it could
not be explained why the United Nations has not taken any steps with regard to,
for example, Aceh which has about 4 million (double of the one in Kosovo) large
population, as it has taken in Kosovo. This territory, called by some Indonesian
Kosovo48 has many similarities: there had been a protracted conict between the
Indonesian Government and the Free Aceh Movement which has been active since
the mid-1970s; while dealing with separatists in Aceh the Indonesian governmental
forces perpetrated large-scale human rights abuses, including extrajudicial execu-
tions, disappearances, torture and rape, imprisonment of peaceful activists, etc.,
Antonia Zervaki, United Nations at Crossroads: International Administration of Ter-

ritories and Domestic Political Cultures, The Kosovo and East Timor Experience, Uni-
versity of Peloponnese, UNISCI Discussion Papers, No. , October , .
Ibid. .
Ibid. .
Security Council Resolution , UN Doc. S/RES/ ( March ).
Simon Chesterman, Justice Under International Administration: Kosovo, East Timor
and Afghanistan, Transitional Administrations, International Peace Academy Report,
September , .
See Eriko Uchida, Aceh: The Indonesian Kosovo No One is Supposed to Know About.
Accessed July . http://www.geocities.com/TheTropics/Cove///INA-
acehosovo.html.
that forced in July 1999 alone (at the same time when the NATO military interven-
tion in Kosovo terminated and the international administration was established)
more than 80,000 people to ee the violence. Some authors record that Indonesian
military crackdowns after 1998, including heavy military operations in 2001 and
2002, resulted in the killing of 2,000 people in 2001 and a likely equal number in
2002, in widespread destruction, and in over 100,000 people eeing their homes.49
One of the reasons why the United Nations has not reacted probably can be found
in the position of Western states and primarily the United States which, unlike the
case of Kosovo, was prepared to support the parent states, i.e. Indonesias territorial
integrity. It sought, to reassure post-Suharto leaders that the United States would
not repeat its East Timor policy of 1999 towards other parts of Indonesia where there
were separatist movements.50 Due to the Memorandum of Understanding signed
between the Government of the Republic of Indonesia and the Free Aceh Movement
in August 2005, at this moment there are no disturbances and the situation in Aceh
seems to be rather stable and peaceful.51
c The Kosovo Declaration of Independence and its Recognition

As long as minorities and ethnic groups are not clearly dierentiated from a people,
as a category enjoying the right to external self-determination, there will be attempts
to claim statehood. Only in Europe there are about 40 secessionists and about the
same number of movements for (greater) autonomy. Some of the past secessions
were accepted, many others were refused. In the past there have been cases of se-
cession similar to Kosovo. For example, the creation of independent Bangladesh in
1971 is mentioned to be a precedent to the recognition of Kosovo independence.52
Pakistan, like Serbia, was blamed for violating minimal standards of human rights
in its province of East Bengal, for killing and imprisoning a large number of the
population, for causing a mass ights of refugees to India, and for denying the people
the right to self-determination.53 In this respect the secession of the province of East
Bengal from Pakistan, supported by a military intervention (not leading to the occu-
pation of East Pakistan) carried out by India, has a strong resemblance with Kosovo.
As result of the military involvement of India, East Bengal declared independence
Taken from, Larry Niksch, Indonesian Separatist Movement in Aceh, Congressional

Research Service, the Library of Congress, Updated September . Accessed
September . http://www.fas.org/irp/crs/RS.pdf>.
Ibid.
The Memorandum was signed in Helsinki, Finland, following negotiations facilitated by
Martti Ahtisaari who acted as a UN Chief negotiator for Kosovo.
See FPIF (Foreign Policy in Focus) Ian Williams, Commentary, A New Kosovo,
February . Accessed September . http://www.fpif.org/fpiftxt/.
See Thomas M. Frank and Nigel S. Rodley, After Bangladesh: The Law of Humanitarian
Intervention by Military Force, American Journal of International Law (): .
which was, hailed as a triumph for the East Bengalis human rights and their desire
for self-determination.54
It is self-evident that the Kosovos Declaration of Independence triggers a discus-
sion regarding the rules on external self-determination, the right to secession and
the impact of international recognition on the creation of new states. With regard
to secession international law also does not have clear rules that allow or prohibit
it. Its specic feature is that it, may exist as a fact, but it cannot be claimed as a
right or remedy.55 Similarly, self-determination established in the UN Charter as
a principle and in the two Human Rights Covenants (of 1966)56 as a right is also
dicult to grasp when it comes to its implementation. As observed by Rupert Emer-
son, [a]ny examination of self-determination runs promptly into the diculty that
while the concept lends itself to simple formulation in words which have a ring of
universal applicability and perhaps revolutionary slogans, when the time comes to
put it into operation it turns to be a complex matter hedged in by limitations and
caveats.57 Further on in the text, he rephrased this by saying: what is stated in big
print as in the reiterated UN injunction: All peoples have the right to self-deter-
mination is drastically modied by what follows in small print. Indeed, once the
major original exercise of self-determination has been undertaken, the small print
takes over and becomes the big print which establishes the new and far more restric-
tive guidelines.58
As noted by Koskenniemi the law has an obvious, reluctance to set up deter-
minate hierarchies concerning abstract forms of behaviour, its constant reference
to an appreciation of circumstances.59 This means that, like in Kosovo, it could be
expected also in other future cases that a solution will depend rather on particu-
lar circumstances rather than on the law. Supporters of the Kosovos Declaration
consider it to be a case with exceptional circumstances justifying its independence.
According to Daniel Fried: [s]eparatist may claim that Kosovo is a precedent, but
separatists existed for a long time. The fact is that Kosovo is not a precedent for other
conicts at all. Kosovo is a unique situation, because NATO was forced to inter-
vene to stop and then reverse ethnic cleansing 60 Already in June 1999, some two
weeks after NATO terminated its military intervention, Jonathan Tepermann asked
Ibid.
Christopher J. Borgen, Introductory Note to Kosovos Declaration of Independence,
International Law Materials (): .
Common Article of the International Covenant on Civil and Political Rights and In-
ternational Covenant on Economic, Social and Cultural Rights adopted in .
Rupert Emerson, Self-Determination, American Journal of International Law
(): .
Ibid.
Martti Koskenniemi, Hierarchy in International Law: A Scetch, European Journal of
Interview with the Assistant Secretary of State, US Department, Daniel Fried, Council
on Foreign Relations, February . Accessed September . http://.../
search?q=cache:cKzpNVxqggJ:www.cfr.org/publication//serbs_urged_to_ac-
himself: Did NATOs intervention rewrite the rules on self-determination? Has the
go-ahead been given to every ethnic group that wants to carve out its mini-state?61
And his answer was no, [i]f other separatists hope to qualify for similar NATO or
United Nations support, they will have to meet several strict conditions an unlike-
ly prospect. Before NATO stepped in, Kosovo had for a decade faced the worst kind
of oppression. It was stripped of its autonomy in 1989. Ethnic Albanians were denied
basic political and cultural rights, reduced to non-citizens. Passive resistance was
attempted and got nowhere. By the time the Kosovo Liberation Army (KLA) cranked
up its guerrilla war in 1998, every other form of dissent had been tried. In light of all
this, the fact that NATO eventually came to the Kosovars aid hardly establishes a
broad new precedent for radical self-determination.62
Regrettably, in its recently issued Advisory Opinion the International Court
of Justice did not shed any new light on the legal questions linked to the Kosovo
Declaration of Independence. The formulation of the question posed by the Gen-
eral Assembly to the Court (Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with interna-
tional law?63) was in the view of the Court: narrow and specic64. Accordingly, the
Court, decided to debate only the technical content of the declaration of indepen-
dence [and] avoided to rule on the essential issue [on the right to secession].65 This
approach has led to very interesting conclusions by the Court which: unfortunately
[entail] serious negative implications for the integrity of the Courts judicial function
and its role as a principal organ of the United Nations.66
As far as general international law is concerned the Court came only to a brief
conclusion that there is no applicable prohibition of declarations of independence
and accordingly the Kosovo Declaration did not violate general international law.67
This was not only disappointing to many but was also strongly criticized by some
members of the Court. Judge Simma claimed that: the Court could have delivered a
more intellectually satisfying Opinion, and one with greater relevance as regards the
international legal order as it has evolved into its present form, had it not interpreted
the scope of the question so restrictively. To treat these questions more extensively
would have demonstrated the Courts awareness of the present architecture of inter-
cept_kosovo_plan_to_gain_european_future.html+Daniel+Fried,+separatists+may+cl
aim+Kosovo+is+precedent&cd=&hl=nl&ct=clnk&gl=nl.
Johnatan Tepperman, Freedom for Kosovo Is Not a Dangerous Precedent, The
New York Times, June . Accessed September . http://www.nytimes.
com////opinion/iht-edjon..t.html.
Ibid.
GA Res. /, A/RES// ( October ).
The statement of the President of Serbia, Borislav Tadi, in his rst reaction to the ICJ
Advisory Opinion, July . Accessed July . http://www.b.net/eng/news/
politics-article.php?yyyy=&mm=&dd=&nav_id=.
Judge Skotnikov, Dissenting Opinion, Kosovo Opinion, para. .
Ibid. para. .
national law.68 In his view, by unduly limiting the scope of its analysis, the Court
has not answered the question put before it in a satisfactory manner. To do so would
require a fuller treatment of both prohibitive and permissive rules of international
law as regards declarations of independence and attempted acts of secession The
Court could have considered the scope of the question from an approach which does
not, in a formalistic fashion, equate the absence of a prohibition with the existence
of a permissive rule; it could also have considered the possibility that international
law can be neutral or deliberately silent on the international lawfulness of certain
acts.69 The way in which the Court dealt with the question of the General Assembly
leaves an impression that it did not dare to articulate and clarify the law on self-
determination and secession as it stands at the beginning of the 21st century and its
impact on the principles of territorial integrity and inviolability of boundaries. This
might be explained by the political sensitivity of the Kosovo Declaration of Inde-
pendence, the divided views on international plane and a possible impact which the
Courts opinion would have on particular situations and self-determination/seces-
sionist movements in the world.
Even more interesting is the conclusion drawn by the Court regarding the legality
of the Declaration of Independence in the view of Resolution 1244 (1999) which, as
special law or lex specialis vis--vis general international law, has primacy in appli-
cation in Kosovo. Resolution 1244 (1999), which has a binding force under Chapter
VII pursuant to Article 25 of the UN Charter, conferred to UNMIK all legislative
and executive authority with respect to Kosovo, including the administration of the
judiciary, exercised by the Special Representative of the Secretary General.70 In other
words it did not leave any room for creation of parallel structures and decision-mak-
ing outside the framework of the international administration and control, especial-
ly not those which would have international implications. Accordingly, if the inter-
national administration (UNMIK and the UN Special Representative) did properly
its job, it would not have been possible to adopt a declaration of independence by any
other than the legally established structure in Kosovo and, if it happened, such an
act should have been declared as illegal and void. However, the Special Representa-
tive did nothing to decline its legality. The Court explained that: [t]he silence of the
Special Representative of the Secretary-General in the face of the Declaration of
Independence of 17 February 2008 suggests that he did not consider that the Decla-
ration was an act of the Provisional Institutions of Self-Government designed to take
eect within the legal order for the supervision of which he was responsible. As the
practice shows, he would have been under a duty to take action with regard to acts
of the Assembly of Kosovo which he considered to be ultra vires.71 According to the
Judge Simma, Declaration, ibid. para. .

Ibid. para. .
UNMIK Regulation No. /, UN Doc. UNMIK/REG// ( July ), Section
Authority of Interim Administration, para... As provided by Section , the Regula-
tion entered into force as of June , the date of adoption of the Security Council
Resolution ().
See Kosovo Opinion, para. .
Court: [n]owhere in the original Albanian text of the Declaration (which is the sole
authentic text) is any reference made to the Declaration being the work of the As-
sembly of Kosovo. The words Assembly of Kosovo appear at the head of the Declara-
tion only in the English and French translations contained in the dossier submitted
on behalf of the Secretary-General.72 For these reasons, the Court took the view
that: the authors of the Declaration of independence of 17 February 2008 did not act
as one of the Provisional Institutions of Self-Government within the Constitutional
Framework, but rather as persons who acted together in their capacity as representa-
tives of the people of Kosovo outside the framework of the interim administration73
Remarkably enough, the fact that all international documents issued in the period
following the adoption of the Declaration of Independence clearly state that it was
adopted by the Assembly of Kosovo and that the Kosovo Assembly itself did not deny
that, had no inuence on the position of the Court.
There were some voices that by its Advisory Opinion the Court itself created
precedents that will have impact on other secessionist movements in the world. It
did so by giving an dubious interpretation that the Declaration of Independence was
lawful as it was not adopted by the Assembly of Kosovo (as one of the Provisional
Institutions of Self-Government in Kosovo) and that as such the Declaration was
not prohibited by general international law and thus was allowed. In his Dissenting
Opinion, Judge Koroma stressed that:
[i]nternational law does not confer a right on ethnic, linguistic or religious groups to break
away from the territory of a State of which they form part, without that States consent,
merely by expressing their wish to do so. To accept otherwise, to allow any ethnic, linguis-
tic or religious group to declare independence and break away from the territory of the
State of which it forms part, outside the context of decolonization, creates a very danger-
ous precedent. Indeed, it amounts to nothing less than announcing to any and all dissident
groups around the world that they are free to circumvent international law simply by act-
ing in a certain way and crafting a unilateral declaration of independence, using certain
terms. The Courts Opinion will serve as a guide and instruction manual for secessionist
groups the world over, and the stability of international law will be severely undermined.74
But, as a matter of fact and law, the Opinion of the Court is not binding and the
States will remain free to consider Kosovo as a unique, sui generis, case and not a
precedent:
[S]everal participants in the proceedings were concerned at characterizing the situation

of Kosovo as sui generis, or otherwise. Underlying this concern is the underlying preoc-
cupation with the creation of a precedent, whatever its outcome might be. One can hardly
escape from the acknowledgement that each case is a case, engulfed as it is in its own
history. Some cases may partake the same historical features (such as the decolonization
Ibid. para. .
Ibid. para.
See Judge Koroma, Dissenting Opinion, ibid. para. .
cases of the late sixties, seventies and early eighties), thus conforming a pattern, in the his-
torical development of the Law of the United Nations. Others may appear rather unique,
also in the framework of the Law of the United Nations.75
In situations like Kosovo, international recognition seems to be of decisive impor-

tance, not in the creation of a new state, but in legalizing its existence. For that rea-
son authors turn to recognition in order to conclude that the number of recognitions
indicates the extent to which states are prepared to consider secession legal.76 In
the case of Bangladesh international recognition went rather smoothly. Within two
years of the declaration of independence (from March 1971-March 1973) Bangladesh
was recognized by 98 countries. The admission to the United Nations membership,
however, proved more dicult and due to the Chinas opposition in the Security
Council it took place only in September 1974. The 72 States or more than one
third of the international community that have recognized Kosovo in the period
February 2008-November 2010 is not insignicant. Taiwan, for example, has in the
period from 1949 until May 2009 established diplomatic relations with only 23 (pre-
dominantly non-Western) states. Both cases, Bangladesh and Taiwan, illustrate that
the recognition reects States perception on the legality of the secession in ques-
tion. Determinative factors in the decision-making of the recognizing States are: (a)
their own political/security/economic interests with regard to the parent State and/
or secessionist unit, and (b) their internal minority situation, which might be aggra-
vated by the recognition and which might jeopardise their political stability. These
factors have also played a role in the international recognition of Kosovo. Some pow-
erful Western countries, primarily those which have supported Kosovo throughout
the whole process leading to independence, have recognized it immediately after
the Declaration of Independence was adopted. On the other hand, for the reasons
mentioned above, there are many of those which do not intend to do so: they either
consider the Declaration of Independence illegal and support the territorial integrity
of Serbia for fear that such a recognition would return to them as a boomerang by
triggering the dissolution of their own territories because of the secessionist claims
of their minority groups. Out of 27 member states of the European Union, 22 recog-
nized Kosovo almost immediately after the adoption of the Declaration of Indepen-
dence. Similarly 24 out of 28 NATO member states (majority overlapping with the
EU member States) have decided to recognize Kosovo independence. However, in
some countries, like Spain, by September 2010 recognition has still not been under
consideration. Spain has ocially declared that it will not recognize Kosovo as it
considers its Declaration of Independence not to be in accordance with international
law and in Spring 2009 announced its withdrawal from EULEX.77 However, the de-
Judge Canando Trindade, Separate Opinion, ibid. para. .

EULEX stands for European Union Rule of Law Mission in Kosovo established by
the European Council Joint Action //CFSP adopted on February and
amended June .
cision of Spain is obviously determined by its own situation in Catalonia and the
Basque autonomous communities. Both of those have secessionist claims.
While India played decisive role in the creation of Bangladesh, today it is on the
opposite side strongly criticizing Kosovo independence. India also has to deal with a
number of secessionist and autonomist claims on its territory and for its self-protec-
tive purposes it feels pressed to take a dierent position towards self-determination
claims in other countries. Probably a major point of Indias concern is that a Kosovo
precedent could be used by Kashmir, which has been part of India since its indepen-
dence in 1947 and which, due to its militarization by India, suered a huge loss of
human lives during the last two decades. The Pakistani-Indian political and armed
conict over Kashmir has been under UN attention since 1948, however the issue
has not been solved yet.78 In the late 1990s, when Kosovo was in the focus of interna-
tional attention, Kashmir was described as one of the most dangerous regions in the
world. The administration of the newly elected US President, Barack Obama, has in
January 2009 identied Kashmir as one of the worlds hot spots (together with the
Balkans and the Golan Heights).79 Such a position by the US will probably give a new
impetus to international eorts to nd a solution to the question of Kashmir and in
that case Kosovo can serve as a useful comparison in some respects.
In addition, states like China, which is greatly concerned with Taiwan and Tibet,
do not intend to recognize Kosovo. With regard to Tibet, although Chinas legal
claim to the province is weak, its de facto control and exercise of power and force
is strong, which makes Tibet dicult to qualify for UN support similar to the one
given to Kosovo.80 In March 2008, by using force, China suppressed anti-Beijing
and pro-independence demonstrations. The international reaction to that was only a
mounting pressure on China to hold dialogue with the Dalai Lama. Obviously, hav-
ing strong interest in good relationship with China, states are very careful in deal-
ing with the claims of Taiwan and Tibet. So, for example, Bangladesh, not long ago
struggling for its own independence, expressed in March 2008 a clear opposition to
the Taiwans attempt to seek UN membership through a referendum.81 Similarly, the
United States which had a leading role in the independence of Kosovo, took a quite
Since January the UN has deployed a peacekeeping operation for the States Jam-
mu and Kashmir, the UN Military Observer Group in India and Pakistan (UNMOGIP)
to supervise the ceasere agreed between India and Pakistan. See SC Res. / of
April . It is the second oldest peacekeeping operation established by the United
Nations. See United Nations Peacekeeping Operations . Year in Review (New
York: Peace and Security Section, United Nations, Department of Public Information,
), .
Accessed September . http://www.indianexpress.com/news/obamas-envoy-to-
the-un-mentions-kashmir//.
See, Johnatan Tepperman, Freedom for Kosovo is not a Dangerous Precedent, The
New York Times, June . Accessed September . http://www.nytimes.
com////opinion/iht-edjon..t.html.
Embassy of the Peoples Republic of China in the Peoples Republic of Bangladesh,
March . Accessed September . http://bd.china-embassy.org/eng/xwdt/t
.htm.
dierent position with regard to Taiwan. Since the moment of formal recognition of
the Peoples Republic of China in 1979, it has not had any ocial diplomatic relations
with Taiwan. This all conrms the view that the right to independence and state-
hood remains in the political rather than legal realm.
4 Conclusion: Effects of Kosovo Independence

While the Kosovos Declaration of Independence did not create a precedent, it can-
not remain without impact on the developments in other countries. Some events il-
lustrate this point. Without intending to provide a systematic overview, it suces to
mention that immediately after the adoption of the Declaration, in February 2008,
the Parliament of Republika Srpska, one of the two entities of Bosnia and Herze-
govina, declared that in case of recognition of Kosovo by a majority of EU member
states, it would hold referendum on its constitutional status within Bosnia and Her-
zegovina. A much stronger case is the Russian military intervention in South Osse-
tia, Georgia in August 2008. Similarly like NATO, Russia carried out a military op-
eration under the pretext of humanitarian intervention. In the same month, August
2008, it recognized the independence of Abkhazia and South Ossetia82 by claiming
that the peoples of these two regions had the right to determine their fate given the
undemocratic rule of Georgia amounting to acts of genocide.83 Currently they are
recognized only by three other states, Nicaragua, Venezuela and Nauru.
Given the status of international law and the developments following Kosovos
Declaration of Independence, one can agree with the conclusion that, although not
creating a precedent in international law, there is now, based on the reactions of
other secessionist entities, a Kosovo argument in international diplomacy.84 In the
future it will be used by various subjects, states supporting the independence, states
opposing the independence and entities claiming the independence. What will be
the strength of this argument in each particular case will depend on their particular
circumstances and prevailing interests.
Both, Abkhazia and South Ossetia declared independence from Georgia in and
, respectively.
Accessed August . http://english.pravda.ru/russia/kremlin/--/-
russia_ossetia_abkhazia-.
Chapter 13 The Impact of Kosovo:
A Precedent for Secession in Georgia?
VAKHTANG VAKHTANGIDZE
1 Introduction
The right of self-determination creates one of the most complex problems in the eld
of international law. So far the numerous attempts to universally ascertain the exact
scope and specic content of the right have proved unsuccessful. Existing confu-
sion and controversy remain a source of the escalation of many ethnic conicts; a
threat to international order and the persistent gap in basic international law which,
if lled, would be helpful in many situations. Between 1956 and 2002, 146 ethnic
groups in 78 countries demanded greater territorial autonomy or independence from
their central government; importantly, in the vast majority of these cases the gov-
ernment responded by refusing to compromise on any issue related to territory, even
if they faced armed rebellion as a result.1
The evolution of the right to self-determination has been extremely dramatic in
this century2 and mainly due to the international involvement and its impact on
the dispute resolutions. Primarily established for the reason of decolonisation, the
contemporary concept of the right of self-determination has moved far away from
its roots and reached a status of a legal right. However, from todays perspective it
seems that so far international involvement has not had a very positive impact on
the systematic and consistent development of the right of self-determination. This
has resulted in a number of highly controversial cases and the alleged establishment
of double-standards (including arguable claims regarding the exceptional circum-
stances, etc.) given that there are no legal mechanisms which could consider the
rightfulness of the claim on self-determination and/or dene the beneciaries of this
right. The lack of clarity around the most fundamental aspects and concepts of the
right of self-determination have further contributed to the confusion surrounding
Barbara Walter, Building Reputation: Why Governments Fight Some Separatists but
Not Others, American Journal of Political Science, : (): .
Richard Anderson Falk, Revisiting the Right of Self-Determination, in Human Rights
Horizons: The Pursuit of Justice in a Globalizing World, ed. Richard Anderson Falk (Lon-
don: Routledge, ), .
this problem even more. As a universally recognised right, self-determination keeps

developing mainly as a political response to situations rather than as a legal founda-
tion for future claims. Moreover, the current conditions created around the problem
of self-determination allow political manipulation usually pursued by strong politi-
cal actors.
As self-determination movements persist and proliferate, states and the inter-
national community continue to be faced with the intractable diculty of nding
adequate and suitable responses.3 Approaches applied for tackling existing problems
should be mainly aimed at establishing and/or maintaining a legal order, which is
given priority in managing force in a democratic society.4 In the states experiencing
problems with secessionist aspirations, responses from the international commu-
nity should be aimed mainly at restoring peace or crystallising the vague elements of
this right. However, as Falk asserts, certain impulses may inuence the outcome of
secession: to encourage restive people when it seems strategically convenient and to
safeguard the integrity of existing states, even if that integrity depends on extreme
forms of coerces over long periods of time.5 Therefore, it may well be stated that
the diversity of approaches in similar situations has worked against the objectives
of peace and clarity. Hannum suggests that it is unlikely that any existing human
rights mechanism or even a new mechanism will be of much assistance in dening
the right in the foreseeable future.6 Therefore, the window for dierent politically
inuenced decisions is still wide open and the recent opinion of the International
Court of Justice (ICJ) Accordance with International Law of the Unilateral Decla-
ration of Independence in Respect of Kosovo7 as it will be discussed later, failed to
contribute to clarity around the problem. In these conditions self-determination as
an established human right remains substantially vague.
The dynamics of the political processes, which usually include international in-
volvement in one or another form, are so complex that they have a ripple eect on
other similar political processes. The chain reaction is usually very fast as can be
observed from a number of cases including the most recent ones of Kosovo and Ab-
khazia/South Ossetia. Hence, the impact of the case of Kosovo, created as a result of
the active involvement of the western governments, on the secessionist movements
in Georgia is the main question to be addressed in the following chapter. During the
Carmen Kettley, James Sullivan, Jessie Fyfe, Resolving Self-determination Disputes

Through Complex Power Sharing Arrangements, (Workshop, Pembroke College, Uni-
versity of Cambridge, University of Cambridge and Carnegie Corporation of New York,
- February ), .
Richard Anderson Falk, Law, Morality and War in the Contemporary World, Princ-
eton Studies in World Politics (): .
See note above.
Hurst Hannum, Right to Self-Determination in the Twenty First Century, in Human
Rights in the World Community, eds. Richard Pierre Claude and Burns Weston (Penn-
sylvania: University Pennsylvania Press, ), .
Respect of Kosovo (Advisory Opinion), ICJ ( July).
Chapter 13, Vakhtang Vakhtangidze The Impact of Kosovo: A Precedent for Secession in Georgia? 397
discussion attention will be drawn to the specic character of the Georgian conicts
which will include a comparison of secession problems in Georgia and the Balkans
and will be followed by a rough identication of similarities and dierences that can
be observed in these cases. This should, rstly, contribute to the assessment of the
actual impact of the Kosovo case on the developments which took place in Georgia
in August 2008 and, secondly, contribute to understanding of the impact the Kosovo
case may have had (or might have) in terms of bringing clarity to the disputes on self-
determination in Georgia.
2 The Conflict of August 2008
a Pre-2008 Historical Facts and Figures

Georgia is one of the post Soviet Republics that gained independence after the break-
up of the Soviet Union. Georgia declared independence on 9 April 1991 and was ad-
mitted as a Member State of the United Nations on 6 July 1992, with the boundaries
it had when it was a Soviet Republic.8 Soon after becoming independent, Georgia
experienced civil war resulting in a coup dtat against President Zviad Gamsakhur-
dia and ethnic conicts in two dierent regions of the country: Abkhazia and South
Ossetia.9 However, at the time of the collapse of the Soviet Union in the early 1990s,
its territory included three autonomous republics: Adjaria, Abkhazia and South Os-
setia. Abkhazia had the status of autonomous republic and South Ossetia enjoyed
the status of autonomous region (oblast) in accordance with the 1923 Constitution
of the Georgian Soviet Socialist Republic.10 The autonomous status of these regions
was rearmed by 3 dierent constitutions of the Soviet Republic of Georgia adopted
at dierent times (1927, 1937 and 1977).11
Historically, Georgia contained dierent peoples of various ethnicities which
strongly aected its demographics and gradually transformed it into a multiethnic
Application Instituting Proceeding before the International Court of Justice submitted

by the Government of Georgia, Jurisdiction of the Court, August , para. . Ac-
cessed October . http://www.icj-cij.org/docket/ les//.pdfview=FitH&
pagemode=none&search=Georgia.
See, After the Rose, the Thorns: Political Prisoners in Post-Revolutionary Georgia, In-
ternational Foundation for Human Rights, Aug. : -. Accessed October .
http://www.dh.org/After-the-rose-the-thorns.
See Georgia: Avoiding War in South Ossetia, Report No. , (International Crisis
Group, ): . Accessed September . http://unpan.un.org/intradoc/groups/
public/documents/UNTC/UNPAN.pdf.
See the Constitution of the Soviet Republic of Georgia ( April ), Arti-
cle . Accessed September . http://www.rrc.ge/law/Gkon____e.
htm?lawid=&lng_=en. See also, the Decree on Establishing the Autonomous Re-
gion of South Ossetia , available in Russian at: http://southosetia.chat.ru/ru_perel.
htmldek. Accessed September .
society, with 30 of the population consisting of non-Georgian ethnic groups,12 in-

cluding Armenians, Russians, Azerbaijanis, Ossetians, Abkhaz, Greeks, Jews, etc.
The ethnic composition in Abkhazia and South Ossetia was dierent. According to
the last Soviet census conducted in 1989, in Abkhazia the largest percentage of the
population comprised ethnic Georgians (45.68),13 followed by Abkhaz (17.76), Ar-
menians (14.58), Russians (14.27), Greeks (2.8) and other ethnic minorities form-
ing 4.91 of the entire population of the region.14 Unlike in Abkhazia, Georgians did
not form the largest group in South Ossetia. South Ossetians comprised 66.21 of
the population whereas the Georgians represented just under a third of the popula-
tion, with 28.97. They were followed by Russians, 2.16 , Armenians 1., Jews 0.40
and other minorities forming 1.26 of the entire population of the region.15
b The 1991 Conflict in South Ossetia

In September 1990, South Ossetia unilaterally declared its independence from the
Georgian SSR.16 Thereafter, in December 1990, the president of Georgia, Zviad Gam-
sakhurdia, abolished the autonomous status of South Ossetia17. In response to this
in 21 December 1991 South Ossetia voted for independence from Georgia. This was
followed by the 1992 referendum for independence followed by the adoption of the
act of independence of 1992.18 The aforementioned developments caused political
See Independent International Fact-Finding Mission on the Conict in Georgia, Sep-

tember : volume II, . Accessed October . http://www.ceiig.ch.
Georgian sources claim that the signicant number of Georgians living in the region
was explained by the fact that Georgians historically inhabited the region, while Abk-
haz sources claim that it was due to the s repressions of Abkhaz and the nationalist
policy of Georgianisation launched by the Soviet government leaded by Joseph Sta-
lin. See The History of Abkhazia, ed. Stanislav Lakoba and Istoriya Obkhazii (Gudauda:
Alashara, ), -. However, it is a well-known fact that in s even Georgians,
especially the representatives of the Georgian intelligentsia (including remarkable rep-
resentatives of the Georgian culture), suered from severe suppression (See, among
other sources, Alexander Mikaberidze, Historical Dictionary of Georgia (Tbilisi: Scare-
crow Press, ).
See State Committee of Statistics of the USSR, All-Union Population Census
( ), (VESTNIK STATISTIKI (
), ), -.
Ibid.
Declaration of State Sovereignty of the Soviet Democratic Republic of South Ossetia,
September . Accessed October . http://www.rrc.ge/law/dekl____e.
htm?lawid=&lng_=en.
See note above.
See The Act of Independence of South Ossetia, May , available in Russian at:
http://www.osetinfo.ru/conf. Accessed September .
tensions in the region, which triggered an armed conict19 in January 1991.20 The
conict lasted throughout 1991 and caused thousands of casualties. As a result, tens
of thousands of refugees/IDPs were created on both sides of the Georgian-Russian
border.21 By 1991 the South Ossetians had expelled the majority of Georgian troops
from the region and most of the territory of South Ossetia became subject to the de-
facto control of the secessionist government.22
The armed conict between the South Ossetians and the Georgian authorities
ended in late 1992 with the signature of a ceasere agreement brokered and spon-
sored by Russia.23 A Joint Peacekeeping Force, composed of Georgian, Ossetian and
Russian armed forces, was established.24 As a result of the conict, Georgia has
ceased to exercise de facto control over South Ossetia.25 The territories controlled
by the former autonomous government included the districts of Tskhinvali, Java,
Znauri, and parts of Akhalgori.26 About 23,000 ethnic Georgians ed from South
Ossetia and resettled in other parts of Georgia.27 However, parts of South Ossetia
remained under Georgian control including a part of Akhalgori and several ethnic
Georgian villages in the Tskhinvali district.28 Prior to August 2008 almost one third
of the territory remained under the control of the central government of Georgia.29
Minority Rights Group, Historical Context of the Conict in South Ossetia. Accessed
September . http://www.minorityrights.org/?query=south+ossetia&lid=histo
ry.
See note above.
See note above.
See International Crisis Group, Georgias South Ossetia Conict: Make Haste Slowly,
, Appendix C, . Accessed October . http://www.crisisgroup.org/library/
documents/europe/caucasus/_georgia_s_south_ossetia_conflict_make_haste_
slowly.pdf.
See Human Rights Without Frontiers International, Georgia-South Ossetia-Russia:
The historical context of the August War, Report, February . Accessed
October . http://hrwf.net/uploads/SouthOssetia.doc. See also, Lara
Olson, Conciliation Recourses, Accord (). Accessed October . http://
www.c-r.org/our-work/accord/georgia-abkhazia/south-ossetia.php.
See PACE: Political Aairs Committee, Situation in Georgia and the Consequences for
the Stability of the Caucasus Region, Report, September , paras. -. Accessed
October . http://assembly.coe.int/Mainf.asp?link=/Documents/WorkingDocs/
Doc/EDOC.htm.
See note above, Appendix D.
See Note above, Appendix C, .
Human Rights Watch, The Ingush-Ossetian Conict in the Prigorodnyi Region, Report,
. Accessed October . http://www.hrw.org/legacy/reports//Russia.htm.
See note above.
Ibid.
c The 1992 Conflict in Abkhazia

As opposed to South Ossetia the autonomous status of Abkhazia was not threat-
ened by the central government of Georgia.30 However, Georgian nationalist policy
including the State Program for the Georgian Language, caused fears of Georgiani-
sation among the Abkhaz minorities who had strong historical memories of events
in the 1930s, which according to Abkhaz historians included the partially forced
settlements of tens of thousands of Georgians to Abkhazia and repressive measures
against Abkhaz culture such as replacement of Abkhaz toponyms by Georgian
names, prohibition of broadcasting in Abkhaz language and provision of education
only in Georgian language.31 In 1953, many of these discriminatory measures were
abolished.32 The rst contradiction was caused by the creation of a branch of the
Tbilisi State University in Sukhumi and occurred in 1989.33 On 18 March 1989, in
a mass gathering at the village of Lykhny, more than 30,000 people demanded the
restoration of the legal status that Abkhazia had in 1921, as a Union Republic.34 On
25 August 1990 the Abkhaz Supreme Council declared Abkhazias sovereignty.35 The
all-union referendum of March 1991 on a new Union Treaty on remaining with the
Soviet Union further aggravated tensions. While most of Georgia boycotted, non-
Georgians in Abkhazia overwhelmingly supported the Union Treaty.36 This caused
additional political confrontation which resulted in a violent conict which started
on 14 August 1992 when the Georgian armed forces, entered Abkhazia, ostensibly to
rescue thirteen government hostages and secure the rail line to Russia.37
On 27 July 1993, Russia mediated an agreement in Sochi for a ceasere and the
phased demilitarisation of Abkhazia. However, on 16 September Abkhaz troops
broke the ceasere and after the Georgian heavy weapons had been removed from
the conict zone, the pro-Abkhaz forces launched a massive attack on Sukhumi.38
The oensive ended with the defeat of Georgia and the loss of control of large parts
See note above, volume II, -.

Ibid. volume II, .
Ibid.
Stuart Kaufman, An international Theory of Inter-Ethnic War, Review of International
Studies (): -. Marta Weston, Georgia on Our Minds, Report of the Fact
Finding Mission to the Republic of Georgia (): .
See note above, volume II, .
Ethnic Georgian deputies boycotted the Abkhaz Supreme Soviet session. Tbilisi de-
clared the declaration void a few days later.
Close to half of Abkhazias population boycotted in line with the rest of the republic. Of
. of those eligible voted, . in favour. Tim Potier, Conict in Nagorno-Karabakh,
Abkhazia and South Ossetia, A Legal Appraisal (The Hague: Kluwer, ). See also, Ab-
khazia Today, Europe Report No. , September , . Accessed November .
http://www.crisisgroup.org/library/documents/europe/caucasus/_abkhazia_to
day.pdf.
Ibid. .
Note above, volume II, .
of Abkhazia (excluding Upper Abkhazia the Kodori Valley). As a result of the

conicts, over 10,000 civilians died and more than 200,000 ethnic Georgians were
internally displaced from Abkhazia.39 In May 1994 in Moscow under, the auspices
of the UN and with Russian facilitation, a cease-re agreement was signed which
formally ended the military conict.40
d Russian mediation of the Conflict and Peacebuilding Efforts

Since the signature of the ceasere agreement the Russian Federation has been ac-
tively involved in the mediation of the conicts.41 However, during the whole period
its participation remained highly controversial. Firstly, during the 1990s there was
signicant Russian support for the insurrectionists42 and, secondly, because after
the conicts, it continued military, economic, nancial and cultural support to the
secessionist republics.43
Freedom in the World Abkhazia [Georgia], Report, July . Accessed

September . http://www.unhcr.org/refworld/docid/adb.html.
See note above, .
See note above.
See note above, volume I, . See also Nikola Chetkovski, The Georgian - South Os-
setian Conict, (Danish Association for Research on the Caucasus). Accessed No-
vember . http://www.caucasus.dk/chapter.htm.
See note . See also The Committee on the Honouring of Obligations and Commitments
by Member States of the Council of Europe, Report, September ). Accessed
September . http://assembly.coe.int/Mainf.asp?link=/Documents/WorkingDocs/
Doc/EDOC.htm. With regards to South Ossetia, see, for example, the interview
with the Vice-Speaker of the Russian Duma, S. Baburin of February available in
Russian in which he spoke about the support of the Russian Duma to South Ossetia and
the likelihood of its recognizing the independence of South Ossetia by summer .
Accessed November . http://ugo-osetia.ru/./.-.html. See also, the excerpt
from the interview with the Minister of the Foreign Aairs of the Russian Federation
S. Lavrov of August in which he expressed a desire for the reunication of the
South and North Ossetian Republics, Juznaja Ossetia, No. . Accessed November
. http://ugo-osetia.ru/./.-.html. With regards to Abkhazia, see amongst oth-
ers, Putin Ordered Progressive Assistance for South Ossetia and Abkhazia, April
. Accessed June . http://www.rg.ru////abhazia-pomosh-anons.
html. Russia may use Air Force to protect its peacekeepers in Georgia, October
. Accessed November . http://en.rian.ru/world//.html.
Armed Forces of Russia train for possible military actions in South Ossetia and Ab-
khazia, Accessed November . http://news.rin.ru/eng/news//////. Volun-
tary forces from Russia begin to appear in Abkhazia, News.rin.ru. Accessed Nov.
. http://news.rin.ru/eng/news////. European Parliament resolution on the visa
regime imposed by the Russian Federation on Georgia, January , -. Accessed
November . http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//
TEXT+TA+P-TA--++DOC+XML+V//EN&language=EN. Abkhazia to en-
ter Commonwealth of Independent States. Accessed November . http://en.rian.
ru/russia//.html. Electric Trains Movement to be Restored, Caucaz
The peace-building process was unsuccessful and the regions evolved into so-
called frozen conicts. According to the 2009 report of Independent International
Fact-Finding Mission on the Conict in Georgia: notwithstanding the real or per-
ceived interests of the third parties, one of weaknesses of the peace processes in
South Ossetia and Abkhazia in 1992 - 2006 seemed to be the fact that the Geor-
gian, Abkhaz and South Ossetian sides concentrated heavily on external aspects and
players without paying sucient attention to building mutual trust and promoting
reconciliation.44
e The Events of August 2008

The violent conict taking place in and outside the disputed Georgian territories
received comprehensive media coverage worldwide and was variously interpreted by
dierent media, politicians and civil organisations. Some state that the Georgian of-
fensive in the region of South Ossetia was aimed at restoring its territorial unity and
overthrowing the secessionist government.45 The Georgian perspective of the events
is drastically dierent and includes claims of protecting its civilians from shelling
and sporadic violence from the secessionist government.46 The conict acquired
broad attention after the military intervention of the Russian Federation in support
of the secessionist governments. The intervention was followed by an extension of
the conict zone to beyond South Ossetia.
The violence continued despite unilateral calls for a ceasere and the pleas of the
international community for negotiations. On 8 August 2008, President Medvedev
made a statement to the eect that the Russian Federation was exercising its right to
self-defence under Article 51 of the UN Charter and had responded to a Georgian at-
tack on its peacekeepers in Tskhinvali, whose presence in the region was based upon
the 1992 Sochi ceasere agreement.47 Later Georgia informed the Secretary General
of the Council of Europe that on 9 August 2008, President Saakashvili of Georgia
had declared a state of war in the whole territory of Georgia for fteen days.48 On 12
August 2008 President Sarkozy, the then Chair of the European Union, proposed a
Euronews, December . Accessed November . http://www.caucaz.com/

home_eng/depeches.php?idp=&PHPSESSID=cffbeebfa.
See note above, volume I, .
Russia accuses Georgia of open aggression, The Globe and Mail, March .
Accessed November . http://www.theglobeandmail.com/news/world/arti-
cle.ece.
Two Killed in Overnight Shelling in S. Ossetia, Civil Georgia, July . Accessed
August . http://www.civil.ge/eng/article.php?id=.
Thomas Hammarberg, Council of Europe Commissioner for Human Rights, Human
Rights in Areas Aected by the South Ossetia Conict. Special Mission to Georgia and
Russian Federation, September , para. . Accessed September . https://
wcd.coe.int/ViewDoc.jsp?id=&Site=CommDH&BackColorInternet=FECB&
BackColorIntranet=FECB&BackColorLogged=FFC.
Ibid. para.
peace initiative in the form of a six-point reconciliation plan,49 which was ocially
accepted in Georgia and Russia.50 Russian forces occupied sections of Georgia by 11-
12 August, blocking the access to the West of Georgia, Gori and other areas where
they remained until the end of August.51 The territories surrounding South Ossetia
which constituted undisputed Georgian territory were dened by the Russian Fed-
eration as security or buer zones.52
On 8 September 2008, Russia agreed to withdraw all of its armed forces deployed
outside the boundaries of South Ossetia and Abkhazia by 1 October 2008.53 A hu-
manitarian corridor was opened only in the end of August, after the Russian troops
left Georgia. However, according to civil organisations and witnesses, violence
against the Georgian populations continued in Russian/South Ossetian controlled
territories.54 By 28 January 2009 Russian troops still remained in the various parts of
Georgia.55 On 28 August 2008, the Russian Federation recognized the independence
of Abkhazia and South Ossetia, established the diplomatic relations with the two
secessionist enclaves and oered signicant nancial and military assistance.56 Later
Dmitry Medvedev, President of Russian Federation, Press Statement following Negoti-

ations with French President Nicolas Sarkozy, The Kremlin, August . Accessed
September . http://www.kremlin.ru/eng/text/speeches////_type-
typetype_.shtml.
Georgia Signs Cease-Fire with Russia, CNN, August . Accessed September
. http://edition.cnn.com//POLITICS///us.russia/index.htmlcnnSTCText.
Thomas Hammarberg, Council of Europe Commissioner for Human Rights, Human
Rights in Areas Aected by the South Ossetia Conict. Special Mission to Georgia
and Russian Federation, September , paras. , , , , . Accessed October
. https://wcd.coe.int/ViewDoc.jsp?id=&Site=CommDH&BackColorIntern
et=FECB&BackColorIntranet=FECB&BackColorLogged=FFC.
Ibid.
The Ingush-Ossetian Conict in the Prigorodnyi Region (New York: Human Rights
Watch, ). Accessed October . http://www.hrw.org/legacy/reports//Rus-
sia.htm.
PACE, The Consequences of the War between Georgia and Russia, Resolution ,
, para. . Accessed November . http://assembly.coe.int/Main.asp?link=/
Documents/AdoptedText/ta/ERES.htm. See also, PACE, The Consequences
of the War between Georgia and Russia, Resolution , , para . Accessed
Sepember . http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta/
ERES.h.
PACE, The implementation of Resolution () on the consequences of the war be-
tween Georgia and Russia, Resolution , , para. . Accessed September .
http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta/eres.htm.
Dmitry Medvedev, Statement of the President of the Russian Federation, Kremlin,
August . Accessed November . http://www.kremlin.ru/eng/speech-
es////_type_.shtml. See also, Russia Will Provide Financial
Assistance to Abkhazia and South Ossetia, Kremlin, March . http://www.kreml.
org/news/. Dmitry Medvedev, President of the Russian Federation, Speech at
Ceremony for Signing Bilateral Documents between the Russian Federation, the Repub-
lic of Abkhazia and the Republic of South Ossetia, Kremlin, April . Accessed
Russia was joined by Nicaragua,57 Venezuela58 and Nauru.59 The rest of the world
either rejected the independence claims of the secessionist enclaves or abstained
from voicing their opinion. Some states, including the United States and organisa-
tion such as NATO declared that they would never recognise either Abkhazia or
South Ossetia. 60 Later, the Independent International Fact-Finding Mission on the
Conict in Georgia led by Ambassador Tagliavini, appointed by the Council of the
European Union, concluded in its 2009 report, that recognition of Abkhazia and
South Ossetia by third countries was illegal and not a feasible political decision.61
The Russian invasion in Georgia was widely condemned by the Western govern-
ments and international organisations.62 The actions of the Georgian government
also received considerable criticism.63 The conict in South Ossetia has been sur-
rounded by disputable Russian claims deriving from the Charter of the United Na-
September . http://www.kremlin.ru/eng/text/speeches////_type-
type_.shtml.
Daniel Ortega, President of Nicaragua, Statement on the Recognition of the Republics
of Abkhazia and South Ossetia, September , in Spanish: http://www.cancilleria.
gob.ni/publicaciones/r_osetia_s.pdf. Accessed September .
Chavez Recognizes South Ossetia, Abkhazia As Independent, Radio Free Europe,
Radio Liberty. Accessed September . http://www.rferl.org/content/Chavez_Vis-
its_Russia_To_Discuss_Arms_Energy_Deals/.html.
Abkhazia Is Recognized by Nauru, The New York Times, December . Accessed
September . http://www.nytimes.com////world/europe/georgia.html.
T. Kighuradze, The USA will not recognize Abkhazia and South Ossetia, The Messenger
February . Accessed January . http://www.messenger.com.ge/issues/_
february__/_temo.html. See also, :
(The USA will not recognize Abkhazia and
South Ossetia), Vesti.Ru, March , available in Russian at: http://www.vesti.ru/doc.
html?id=&cid=. Accessed January . NATO Never Recognize Separatist
Regimes in Abkhazia and South Ossetia: Special Representative, October . Ac-
cessed October . http://en.trend.az/news/politics/foreign/.html.
See note above, volume I, , para. .
PACE, Declaration on Unilateral Decision by the Russian Federation to Legalise Ties
with the Georgian Regions of Abkhazia and South Ossetia, Written Declaration No. ,
Doc. , ( April ), para . Accessed November . http://assembly.coe.
int/Mainf.asp?link=/Documents/WorkingDocs/Doc/EDOC.htm, See amongst
others, OSCE Chairman condemns Russias Recognition of South Ossetia, Abkhazia
Independence, Accessed November . http://www.osce.org/item/.html.
Delegation of Canada of the OSCE, Statement on the Situation in the Abkhazia and
South Ossetia Regions of Georgia, Meeting of the Permanent Council ( July ).
Accessed November . http://www.osce.org/documents/html/pdftohtml/_
en.pdf.html. The Statement by the Finnish Presidency of the Council of the European
Union ( September ). Accessed November . http://www.osce.org/docu-
ments/html/pdftohtml/_en.pdf.html. The UN resolutions: SC Res. , UN Doc.
S/RES/ ( April ); GA Res. /, UN Doc. A/RES// ( May ).
Georgia: Events of , Report (New York: Human Rights Watch, ) Accessed
September . http://www.hrw.org/en/node/.
tions on the right to self-defence64 and the claims of the Georgian government on
sovereignty and territorial integrity.65
3 Kosovo: Precedent Setting Case or Arguable Exception?

As one commentator has stated, the problem of self-determination is a, classical
example of the chicken and egg dilemma.66 The secession of Kosovo is not an excep-
tion. Moreover, a lack of clarity enables either side engaged in the discussion to argue
successfully in favour of their positions. The lack of clarity or confusion around the
problem has been created mainly by the inconsistent and derogative international
practice which signicantly loosened the already fragile legal fundaments of self-
determination. The Declaration of Independence by the province of Kosovo and its
recognition by 72 UN member states and the Republic of China (Taiwan) is the most
recent and controversial example which may lead to the successful application of
the right of secession. It certainly has the potential to become, one of the dening
moments of the modern international law era.67 Some states and academics argue
that because of its specic character Kosovo constitutes sui generis and should re-
main as a unique, non-applicable precedent.68 However, from todays perspective it
is obvious that the case of Kosovo has far-reaching eects on secessionist claims.
This is mainly due to some states who opposed the creation of Kosovo.69 The Russian

Mikheil Saakahsvili, President of Georgia, Statement on Russias Action, New York
Times, August . Accessed August . http://www.nytimes.com////
world/europe/saakashvili.html.
Sdrjan Cvijic, Self-Determination as a Challenge to the Legitimacy of Humanitarian
Interventions: The Case of Kosovo, German Law Journal (): . Accessed Oc-
tober . http://www.germanlawjournal.com/article.php?id=.
Morag Goodwin, From Province to Protectorate to State? Speculation on the Impact
of Kosovos Genesis upon the Doctrines of International Law, German Law Journal
(): .
Statement by the British Ambassador John Sawers, February , Accessed Octo-
ber . http://www.un.org/apps/news/story.asp?NewsID=&Cr=Kosovo&Cr. See
also, the texts of recognition: Rice Statement on Recognition of Kosovo as Independent
State, February . Accessed October . http://www.america.gov/st/text-
trans-english//February/bpuh.e-.html. Ministry of For-
eign Aairs of Hungary, ( March ). Accessed October . http://www.mfa.
gov.hu/kum/en/bal/actualities/spokesman_statements/Kosovo_recognition_.
htm. Ministry of Foreign Aairs of Sweden, ( March ). Accessed October .
http://www.sweden.gov.se/sb/d//a/. Foreign Aairs and International Trade
Canada, (March , ). Accessed October . http://w.international.gc.ca/
minpub/Publication.aspx?isRedirect=True&publication_id=&language=E&docn
umber=.
Robert Marquand, Russias Case on Georgia Territories: Like Kosovo or Not? Tues-
day, After Invoking Kosovo to Recognize Two Separatist Republics, Russia Changed its
Federation had who strongly opposed the secession of Kosovo,70 soon after the cam-
paign for its recognition started, rejected the sui generis argument and argued that
the precedent should have further applicability namely with respect to Abkhazia
and South Ossetia, two separatist enclaves in Georgia.71 Even in 2006, before the rec-
ognition of Kosovo started, the then-Russian President Putin stated that: if people
believe that Kosovo can be granted full independence, why then should we deny it to
Abkhazia and South Ossetia?72 This became a trend dening statement for ocial
Russian policy regarding Georgian secessionist problems and not surprisingly, the
2008 recognition of these two enclaves followed the statements made by the Russian
ocials.73 At the same time, the process of extension has so far not reached the two
troubled regions of Chechnya and Ingushetia74 (located within Russian Federation)
where at the time of writing the government of the Russian Federation is struggling
to pacify a deteriorated situation.75 Moreover, Russia, faced with an equivalent seces-
sionist claim always supported the doctrine of self-determination applicable, only
in the classical and narrowly dened circumstances of salt-water colonialism,76 but
Tack, The Christian Science Monitor (). Accessed September . http://www.

csmonitor.com///ps-woeu.html.
Ibid.
Ibid.
Amanda Akcakoca, Thomas Vanhauwaert, Richard Whitman and Stefan Wol, Af-
ter Georgia: Conict Resolution in the EUs Eastern Neighbourhood (European Policy
Centre, April ), . Accessed September . http://www.epc.eu/TEWN/
pdf/_EPCIssuePaper-AfterGeorgia.pdf.
Dmitry Medvedev, Statement of the President of the Russian Federation, Krem-
lin, August . Accessed August . http://www.kremlin.ru/eng/speech-
es////_type_.shtml.
EU condemns Russian recognition of South Ossetia, Abkhazia, EU Business, August
. Accessed August . http://www.eubusiness.com/news-eu/..
Suicide truck bomb in Russias Ingushetia republic: Terrorist Rams Gates of Police
Headquarters, Killing and Injuring Ocers on Parade and Civilians, The Guardian,
August . Accessed January . http://www.guardian.co.uk/world//aug//
russia-truck-bomb-ingushetia-nazran. See also, Minister shot dead in restive Ingush-
etia, France , August . Accessed January . http://www.france.com/
en/-minister-shot-dead-troubled-caucasus-region-ingushetia-russia-ruslan-
amerkhanov. UN: Chechnyas Security Problems Spilling Into Ingushetia Moscow,
Voice of America, May . Accessed November . http://www.voanews.com/
english/archive/-/a-----UN.cfm?moddate=--. Daghestan
Deterioration Epitomizes Medvedevs North Caucasus Dilemma, Radio Free Europe,
Augustus . Accessed September . http://www.rferl.org/content/Dagh-
estan_Deterioration_Epitomizes_Medvedevs_North_Caucasus_Dilemma/.
html CrisisWatch No. places North-Caucasus on the list the deteriorated regions,
April . Accessed September . http://www.crisisgroup.org/en/publication-
type/media-releases//crisiswatch/crisiswatch-.aspx.
See Marc Weller, Settling Self-Determination Conicts: Recent Development, Euro-
pean Journal of International Law (): .
according to the 2009 EU fact-nding report made use of ... Kosovo precedent for-
mula selectively, mainly as an instrument to pressure Georgia and less in the case of
the Karabakh conict between Azerbaijan and Armenia.77
In the early stages of the recognition of the secessionist states, those claiming
further applicability of the Kosovo case specically, Abkhazia and South Ossetia
were drawing on the similarities that could be identied in these disputes,78 which
was followed by a campaign of criticism regarding the double-standards and political
manipulations applied in self-determination disputes. On a state level, as mentioned
above, the Russian Federation was the rst state to recognize the independence of
South Ossetia and Abkhazia and also the rst one to declare that the recognition of
Kosovo would have far-reaching eects for the peoples of Abkhazia and South Os-
setia since they had a right to secede as much as the people of Kosovo.79
According to the Declaration of Independence of Kosovo: [Kosovo] is a special
case arising from Yugoslavias non-consensual breakup and is not a precedent for
any other solutions.80 This kind of assertion appears in the majority of statements
made by third countries regarding the recognition of Kosovo as an independent
state,81 including the United Kingdom. In a statement to the Security Council fol-
lowing Kosovos Declaration, British Ambassador John Sawers stated that the unique
circumstances of the violent break-up of the former Yugoslavia and, the unprec-
edented UN administration of Kosovo make this a sui generis case, which creates
no wider precedent, as all EU member States today agreed.82 Similarly, it is stated
in the report of Martti Ahtisaari submitted to the Security Council: Kosovo is a
unique case that demands a unique solution. It does not create a precedent.83 These
claims are supported by some commentators who argue that because of its unique-
ness Kosovo does not constitute a precedent and should not be applied in other se-
cessionist cases.84 However, as Coppieters asserts, the problem is not whether or not
the model can be universally applied. The question is rather whether the principles
behind the decisions taken on Kosovo are universal. Those who deny the relevance
of the Kosovo model for other secessionist conicts, on the basis of its unique fea-
See note above, Volume II, .

Abkhazia: Leader Presses Independence Claim, Institute for War and Peace Report-
ing, March . Accessed September . http://www.unpo.org/content/view/
//.
See note above, .
Declaration of Independence of Kosovo, BBC, Feb. . Accessed August .
http://news.bbc.co.uk//hi/europe/.stm.
See note above.
Ibid.
Martti Ahtisaari, UN Special Envoy for Kosovo, Southeast European Times, March
, Accessed September . http://www.setimes.com/cocoon/setimes/xhtml/
en_GB/infoBios/setimes/resource_centre/bios/ahtisaari_martti.
Bruno Coppieters, The Kosovo Model. Four Lessons for the Caucasus, European Par-
liament, February . Accessed September . http://www.europarl.europa.eu/
comparl/afet/hearings//coppieters_speech_en.pdf.
tures, may very well end up denying that universal principles should be applied at all,
either in Kosovo or in any other similar conict.85
Moreover, it is obviously not the rst time that the claim of uniqueness is brought
forward in cases of secession. The separation of Bangladesh from Pakistan was once
deemed unique as well. As Franck and Rodley assert, Indian intervention for the
purposes of restoring and enforcing the violated human rights of Pakistani nationals
through the use of massive military intervention without international authorisa-
tion created grey areas in international law.86 It seems that the grey areas did not
fade after the Indian intervention in Pakistan. One of the arguments put forward
by the President of the Russian Federation to justify the highly criticised military
intervention in Georgia87 was the argument of genocide committed by the Geor-
gian government with respect to Abkhaz and Ossetian populations. The argument
for genocide, i.e., acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group,88 was brought forward in the past by third states
as a justication for intervening in other states and Bangladesh stands out as a good
example. The government of Russia, by claiming applicability of right to self-defence
deriving from Article 51 of the UN Charter89 intervened in Georgia in order to stop
the alleged genocide of South Ossetians more than 90 of whom are the Russian
citizens.90 By bringing up the argument of genocide Russia, tried to imply the situ-
ation of the South Ossetian crisis to be as highly exceptional and unique as the
situation created in Bangladesh. From the beginning, the Russian government tried
to draw attention at the numbers of victims even though for the crime of genocide
international law requires proof of specic intent. Nevertheless, Russian ocials ini-
tially stated that about 2,000 civilians had been killed in South Ossetia by Georgian
forces. However, it failed to prove the accuracy of these numbers.91 Later the number
Ibid.
Thomas M. Franck and Nigel Rodley, The Law, the United Nations and Bangla Desh,
Israel Yearbook on Human Rights (): .
Bush Slams Russias Invasion Of Georgia: Dramatic And Brutal Escalation Condemned
As Russian Troops Push Out Of Breakaway Regions, Into Western-Allied Neighbor,
CNBC NEWS, August . Accessed August . http://www.cbsnews.com/
stories////world/main.shtml. See also, Russian Invasion Condemned
by European Union, Sky News, September . Accessed August . http://
news.sky.com/skynews/Home/World-News/G-European-Union-Summit-Leaders-
Condemn-Russias-Invasion-Of-Georgia/Article/?f=rss.
Rome Statute of International Criminal Court, UN Doc. A/CONF./ ( July ),
Art. . Accessed September . http://untreaty.un.org/cod/icc/statute/romefra.htm.
Chapter VII, UN Charter .
Who became Russian citizens as a result of a massive passportisation campaign
launched by the government of Russia in the late s. This aspect will be discussed in
more details below.
HRW: Few civilians killed in South OssetianWar, Herald Tribune, September .
Accessed September . http://www.iht.com/articles/ap////esurope/EU-
Russia-Georgia-Death-Toll.php.
of overall South Ossetian civilian losses was reduced to 162.92 In later months the ac-
cusations of genocide became less frequent as the alleged Georgian intent for geno-
cide could not be proven, though, this is not to diminish the importance of human
loss on South Ossetian side.93 Therefore, it seems as though the term unique, used
from time to time to justify certain omissions, is not quite exclusive.
The above mentioned highlights the fact that claims of uniqueness are quite
fragile and that it is therefore, important to identify clearly distinctive elements in
the case of Kosovo, which could qualify it as truly unique and to justify the state-
ments that it cannot be applied as a precedent in the future.
a Could the Aspect of Oppression Be Significant?

The oppression of minorities is unfortunately widespread across the whole world.
Dierent minorities have been subjected to dierent levels of oppression with dif-
ferent durations. There have been cases where the human loss was shockingly high.
As claimed during the confrontations with the central government, about 1 mil-
lion people died in East Pakistan94 as well as in Biafra (Nigeria)95, around 200,000
people were killed since 1994 during the armed conict in Chechnya, 20,000 chil-
dren amongst them.96 It may well be stated that human loss was lower in the case of
Kosovo. Various sources provide dierent accounts of human loss during the 1998-
99 war in Kosovo; the numbers vary from 8,000 to 12,000 people, mainly ethnic
Albanians.97 The number of displaced was, however, extremely high, during the hos-
tilities 800,000 Kosovars (out of a total population of 2.2 million) ed to other parts
of Kosovo, neighbouring countries, and Western Europe.98
Ibid.
See note above, volume I, , para. .
Thomas Musgrave, Self-Determination and National Minorities (Oxford: Oxford Uni-
versity Press, ), .
Aleksandr Pavkovic and Peter Radan, Creating New States: Theory and Practice of Seces-
sion (Aldershot: Ashgate Publishing Limited, ), .
Over , Killed in Chechnya Since Pro-Moscow Ocial, Mosnews, No-
vember . Accessed October . http://web.archive.org/web//
http://www.mosnews.com/news////civiliandeath.shtml.
Eight Years of Imprecision: Estimating the Kosovo Wars Death Toll, Defense and For-
eign Aairs Special Analysis, August , -. Accessed October . http://
www.slobodan-milosevic.org/news/dfasa.htm. See also, New mass grave of Ko-
sovo Albanians Found in Serbia, BBC, May . Accessed October . http://
news.bbc.co.uk//hi/.stm.
Kosovo Future: Negotiating a Precarious Future. Thomson Reuters Foundation, July
. Accessed October . http://www.alertnet.org/db/crisispro les/KO_VIO.
htm?v=in_detail.
b Could the International Presence Serve as a Highly Unique Aspect?

Possibly the most distinctive elements in the case of Kosovo are international inter-
vention and establishment of an international administration. However, this aspect
fails to be totally unique. This is because the UN intervened in East Timor and later,
established a transitional administration, UNTAET.99 A transitional administration
was also established by the UN in the regions of Eastern Slavonia, Baranja and West-
ern Sirmium (UNTAES) in accordance with the Basic Agreement of 12 November
1995 on Eastern Slavonia, Baranja and Western Sirmium, which provided for the
peaceful integration of those regions into Croatia.100 The administration left the re-
gion in 1998 after accomplishing its key objective of peacefully reintegrating it into
Croatia within the prescribed time frame of two years.101
The question of preconditioning the independence of Kosovo by the UNMIK
is highly controversial and distinctive too. Some academics and states, including
Russia, state that it fundamentally contradicts the UN SC Resolution 1244 (1999),102
which commits the UN member states to the sovereignty and territorial integrity of
the Federal Republic of Yugoslavia.103 However, some academics argue that, a con-
textual reading of the resolution in relation to the other legal instruments recalled
in its operative part,104 could lead to dierent assumptions. Moreover, some states
argue that territorial integrity of Yugoslavia was only referred to in a non-binding
paragraph.105 Even though, it would be dicult to state that these assumptions are
as strong as the commitment of the UN to the territorial integrity and sovereignty
of Yugoslavia expressed in the text of the above mentioned resolution, the ICJ in
its Opinion Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo106 applies the test of contextual reading of
the resolution which leads us to rather confusing conclusions. In particular, while
deliberating over the problem of the compliance of the act of the Unilateral Declara-
tion of Independence of Kosovo with Security Council Resolution 1244 (1999), the
Court rstly, emphasizes the legally binding nature of the resolutions,107 imposing
UN Security Council Resolution , UN Doc. S/RES/, October . Suc-

ceeded by United Nations Mission of Support in East Timor (UNMISET). Accessed
September . http://www.un.org/peace/etimor/UntaetM.htm.
SC Res. , UN Doc. S/RES/ ( January ).
United Nations Transitional Authority in Eastern Slavonia, Baranja and Western
Sirmium, Completed Peacekeeping Operations. Accessed September . http://
www.un.org/en/peacekeeping/missions/past/untaes.htm.
Colin Warbrick, Kosovo: the Declaration of Independence, International and Com-
parative Law Quarterly () : .
Ibid. E.g. statement made by the government of Spain.
See, Enrico Milano, Security Council Action in the Balkans: Reviewing the Legality of
Kosovos Territorial Status, European Journal of International Law (): .
See note above, .
Kosovo (Advisory Opinion) () ICJ ( July).
See note above at para. .
obligations on all UN member states irrespective of whether they participated in

their formulation.108 Secondly, the ICJ outlines that in order to respond to the above
question, it had to undertake a careful analysis: of all statements by representatives
of members of the Security Council made at the time of adoption and other resolu-
tions of the Security Council on the same issues, as well as the subsequent practice
of relevant United Nations organs and States aected by those given resolutions.109
Later, when deliberating over the question of the binding nature of the clause in
Resolution 1244 regarding the territorial integrity of Yugoslavia, the ICJ outlines the
need for conducting a careful analysis of, the language of a resolution of the Secu-
rity Council... before a conclusion can be made as to its binding eect.110 It becomes
obvious, that despite recognising the binding nature of the Security Council resolu-
tions, some clauses incorporated in them fail to be legally binding.
The statements made at the time of adoption of the resolution demonstrate the
understanding of the Member States to resolve the problem only by respecting the
territorial integrity of Yugoslavia. Notable are the annexed statement of the Chair-
men listing general principles adopted by the G-8 foreign ministers,111 including,
amongst others, the principle of respect of territorial integrity and sovereignty of
Yugoslavia, and the statements made during the adoption of Resolution 1244 by the
representatives of Argentina,112 the Russian Federation113 and China.114 However, in
its opinion, the ICJ does not give signicant importance to these statements and
states that: although at the time of the adoption of the resolution, it was expected
that the nal status of Kosovo would ow from, and be developed within, the frame-
work set up by the resolution, the specic contours, let alone the outcome, of the
nal status were left open by the Security Council resolution 1244 (1999).115 In order
to prove the rightfulness of the above observation, the ICJ states that the clause
regarding the respect of the territorial integrity of Yugoslavia was not done in clear
and unequivocal terms as it was in Resolution 787 (1992) concerning the Republika
Srpska116 or in its Resolution 1251 (1999) rearming in a specic manner its position
regarding the permanent status of Cyprus.117
Furthermore, the ICJ states that: the references, in the annexes of Security
Council Resolution 1244 (1999), to the Rambouillet accords and thus indirectly to
the will of the people of Kosovo, supports the view that Security Council Resolu-
tion 1244 (1999) not only did not oppose the Declaration of Independence but indeed
Ibid. para. .
Ibid.
Ibid. para. .
Annex , Resolution .
UN Doc. S/PV. ( June ).
Ibid.
Ibid.
Ibid. para. .
Ibid. para. .
contemplated it.118 This observation itself contradicts the operative paragraph 11(e)
of Resolution 1244 (1999) which refers to the Rambouillet accords as stating that:
a nal settlement for Kosovo should be based on the will of the people, opinions
of relevant authorities, each Partys [Belgrade and Prishtina] eorts regarding the
implementation of this Agreement, and the Helsinki Final Act 119 The wording of
this provision requires the presence of all elements rather than just of one of them
the will of people singled out by the ICJ during its deliberations.120 Otherwise, as
Judge Skotnikov points out in his dissenting opinion, the negotiation process would
have no reason whatsoever.121
Moreover, the ICJ goes even further and tries to prove the rightfulness of the
above observation by excluding the persons who unilaterally declared the indepen-
dence of Kosovo from the circle of persons bound by Resolution 1244 (1999) as they
acted outside the capacity of the interim administration as representative of the
people of Kosovo.122
Therefore, it seems that the role played by the UN itself, committed as it is to the
Charter principles of territorial integrity and sovereignty, could in so-called unique
cases, by its activities, damage the territorial integrity of some states which does not
necessarily contribute to clarity around the subject of self-determination. The Opin-
ion of the ICJ most certainly makes the case of Kosovo very unique in post factum
terms; however, the deliberation conducted by the Court fails to portray the whole
case as such which in dierent circumstances could bring clarity to the problem and
justify including the commitment of many states to the independence of Kosovo.
Consequently, it can be asserted that there is not a lot apart from political state-
ments to prove the uniqueness of the Kosovo case. Certainly, Kosovo is not the rst
and the only case of successful secession.123 Nevertheless, it certainly lacks sucient
clarity and contains too much contradiction to be established as a precedent for
generating a custom universally authorising secession. Secession is probably one of
those cases where uniformity, consistency and generality of practice are highly nec-
essary especially at the moment when there are over 200 secessionist movements
worldwide.124
Ibid. para. .
Rambouillet Accords, UN Doc. S// ( June ), Chapter VIII, Art. . Accessed
August . http://jurist.law.pitt.edu/ramb.htm.
See Judge Skotnikov, Dissenting Opinion, ibid.
Some academics try to interpret the secession of Bangladesh in a colonial context, e.g.
Ved Nanda and Gnapala Welhengama.
Darko Duridanksi, Balkan Earthquake is Felt Far Away, Balkan Insight, February
. Accessed October . http://fellowship.birn.eu.com/en/main/publication_
articles_//.
4 Are Abkhazia and South Ossetia as Unique as Kosovo?

The cases of Abkhazia and South Ossetia are by no means less controversial than
the case of Kosovo. Failed diplomacy is probably the fundamental aspect which
is common to all three cases. Since the recognition of Kosovo started, the states
supporting the independence of Kosovo have been actively pushing the idea of the
uniqueness and distinctiveness of this case. Whereas the opposing states, rst tried
to draw upon the similarities, later identied the dierences and by so doing argued
the uniqueness of Abkhazia and Ossetia in the same manner that was done in the
case of Kosovo. Despite the numerous controversies, contradictions, disputes and/
or deals which usually take place behind political curtains, the situation is rather
straightforward in all three cases the legal arguments applied by one or another
party to the dispute are primarily tailored for the successful pursuance of political
ideas, ambitions and/or for achieving political, economic and supposedly, military
inuence in the disputed regions. Clearly diplomacy which should be employed for
the purposes of resolving the situation by preventing further violence and establish-
ing peace did not give any signicant positive results. In this circumstance, it would
be useful to identify the similarities and dierences in these three cases and by doing
so assess the actual impact of the Kosovo case on the developments which took place
in Georgia and the chances for resolving the problems of secessionism in the region.
It is not dicult to identify common points in these three cases. These include:
similar claims on secession; up to now all three conicts are qualied as intra-state
conicts involving foreign military intervention;125 all three regions suered from
severe nationalization after the dissolution of Yugoslavia and the Soviet Union, re-
spectively, which included withdrawal of the status of autonomous republic of Koso-
vo by President Miloevi and the withdrawal of the status of autonomous province
(Oblast) from South Ossetia during the nationalist years of President Gamsakhur-
dia discussed above, leading to hostilities in the respective regions. Furthermore, all
three cases included morally justied fears of minorities being excluded and/or sup-
pressed as a result of nationalisation. Despite the absence of a unied denition of
the term peoples, it can be stated that all three cases included claims of groups with
common historic background, distinctive language, ethnicity and culture, common
claims and signicant numerical representation. However, the level of distinctive-
ness and signicance in the Georgian cases is not as strong as it was in the case of
Kosovo, especially, in terms of suppression of minorities by the central governments.
And nally, all three secessionist states including Kosovo succeeded in establishing
eective control over the disputed territories, however, none of them can qualify as
fully democratic states with economic and political sustainability, eective rule of
law and respect for human, including minority, rights.126
Generic observation regarding the conict in South Ossetia, Uppsala Conict Data-
base. Accessed August . http://www.pcr.uu.se/research/UCDP/.
The government of Kosovo has committed itself to implementing in full the Compre-
hensive Proposal for the Kosovo Status Settlement prepared by the Special Envoy for the
Kosovo Future Status Process, Martti Ahtisaari. One of the aims of the proposal is: to
As we can see there are a number of signicant common aspects in these cases.
However, are they signicant enough to make them absolutely similar and exclusive
at the same time? There must be other disputes with similar claims and based upon
similar moral or legal arguments (Chechnya could serve as a good example). The
dierences identied during the following observation can support the positions
held by either opposing sides engaged in the discussion, however, only a few could
contribute to the clarity with regards to the question of legality and/or morality of
secession. There are a number of distinctive elements involved in these three cases,
they have been identied before, however, the level of importance attached to them
varies depending on the method of interpretation employed by its authors and/or the
level of their political inuence. Nevertheless, I believe identifying those dierences
and evaluating their importance from the point of international law will make this
point clearer.
Firstly, all three regions had a dierent legal status before the dissolution of Yugo-
slavia and the Soviet Union. Even though both Kosovo and Abkhazia had the status
of autonomous republics/provinces, they were quite dierent in content. In particu-
lar, under the 1974 Yugoslav Constitution, Kosovo enjoyed the status of an autono-
mous province similar to that of the six Yugoslav republics with virtually the same
de ne the provisions necessary for a future Kosovo that is viable, sustainable and sta-
ble. Thus it includes: promotion and protection of the rights of communities and their
members; the eective decentralization of government; preservation and protection of
cultural and religious heritage; adopting economic and security provisions aimed at
contributing to the development of a multi-ethnic, democratic and prosperous Kosovo.
Democratic governance and the rules of law are given uttermost importance in the text
of the proposal.
However, after considering various reports on Kosovo and importantly, those tabled to
the General Assembly and the Security Council during -, it becomes clear that
Kosovo faces rule of law problems at all levels. See, amongst others, The Comprehensive
proposal forKosovo Status Settlement, Report of the Special Envoy of the Secretary-
General on Kosovos Future Status: . . Accessed January . http://www.unosek.
org/unosek/en/statusproposal.html. See also, Secretary-General on the United Nations
Interim Administration Mission in Kosovo, July , . Accessed January .
http://www.un.org/Docs/sc/sgrep.htm. Kai Eide, A Comprehensive Review of the
Situation in Kosovo October ), . Accessed January . http://www.fehe.org/
index.php?id=.
The same applies to the problem of the protection of human and minority rights in
Kosovo. See, Clive Baldwin, Minority Rights in Kosovo under International Rule (Lon-
don: Minority Rights Group International, ). Accessed November . www.
minorityrights.org/download.php?id=. See also, Secretary-General on the United
Nations Interim Administration Mission in Kosovo, Report ( November ), para.
; Implementation of the Framework Convention for the Protection of National Mi-
norities in Kosovo, Thematic Shadow Report, Praxis, May . Accessed De-
cember . http://www.praxis.org.rs/index.php?option=com_content&task=view
&id=&Itemid=. Hungary Calls for Kosovo to Assure Rights of Serb Minority,
February . Accessed December . http://www.earthtimes.org/articles/
show/,hungary-calls-for-kosovo-to-assure-rights-of-serb-minority.html).
rights and responsibilities, the same governmental (legislative and executive) struc-
tures, and the same representation at the Federal level127 though, without a right
to secede.128 It also had its own bank, territorial defence force,129 constitution and
constitutional court.130 Kosovo also enjoyed the right of the equality of languages on
its territory, the right to use the national ag131 and a, kind of dual citizenship.132
Some academics even argue that the similarity in status of Kosovo with the six Yu-
goslav republics implied the right to secede133 and as Albanian political leader Azem
Vllasi observed: Kosovo functioned as a republic in the federal state of Yugoslavia
and we were not [a republic] only by name.134 According to Article 72 of the 1977
Soviet Constitution, only fteen republics possessed the right to secede from the
Union135. Even though, the provisions regarding the possibility of seceding from the
Soviet Union were purely formal, the fact by itself carries principal importance. Nei-
ther South Ossetia nor Abkhazia enjoyed the right to secede as they were formerly
not sovereign136 and had less power in the eld of culture and education. However,
Abkhazia did have its own constitution and other attributes of partial statehood,
which were not equal to those enjoyed by the fteen Soviet Republics thus less privi-
leged than the one enjoyed by Kosovo, even though the latter did not have a formal
status of a republic but enjoyed similar privileges. South Ossetia was even lower in
the federal hierarchy and was not considered to have the characteristics of state-
hood.137 Therefore, in terms of legality of secession it can be stated that as opposed
to Abkahzia/South Ossetia, Kosovo was on the higher level of self-management and
Momilo Pavlovi, Kosovo Under Autonomy -, Institute for Historical Justice

and Reconciliation, Scholars Initiative: Team Report (), . Accessed October
. http://www.cla.purdue.edu/si/TeamReporte.pdf.
The Kosovo Conict and International Law: An Analytical Documentation -,
ed. Heike Krieger (Cambridge: Cambridge University Press, ), xiv.
Noel Malcolm, South Ossetia is not Kosovo, The Bosnian Institute, Septem-
ber . Accessed August . http://www.bosnia.org.uk/news/news_body.
cfm?newsid=.
See Article , The Constitution of the Socialist Republic of Serbia .
See Articles and , The Constitution of the Socialist Autonomous Province of Kosovo
.
Christian Staub, The Acquired Rights of Kosovo, Accessed October .
http://www.helsinki.org.yu/doc/-theacquiredrightsofKos-
ovo.pdf.
Paul R. Williams, No Comparison Between Kosovo and South Ossetia, Global Securi-
ty, August . Accessed October . http://www.globalsecurity.org/military/
library/news///mil--rferl.htm.
See note above. . Accessed September . http://www.cla.purdue.edu/si/
TeamReporte.pdf.
See note above.
See note above, volume II, -.
Ibid.
very similar to the six Yugoslav republics who enjoyed the right to secede from Yu-
goslavia.
Secondly, in Kosovo, Albanians represented an absolute majority compris-
ing more than 90 of the population, whereas in South Ossetia, ethnic Ossetians
formed 66 of the population. Rather dierently in Abkhazia the ethnic Abkhazians
were a clear minority comprising just 17.76 of the whole population against 45
for ethnic Georgians. However, there is no implication in international law that the
right to self-determination necessarily belongs only to the peoples forming a major-
ity. As long as the groups seeking for self-determination qualies as a people they
are entitled to exercise self-determination in one way or another. Importantly, nu-
meric representation would have had specic implications, if these situations were to
be resolved in the way it occurred in Quebec. In its 1997 judgment on the legality of
secession of Quebec, the Supreme Court of Canada insisted that from the perspec-
tive of Canadian constitutional law principles, a clear question and a clear majority
in a referendum expressing support for secession,138 was required. Even though, the
referendum itself would have no legal eect and could not bring about unilateral
secession... it would place an obligation on the provinces and the federal government
to enter into negotiations to bring about constitutional changes to respond to that
desire.139 The referenda in the disputed parts of Georgia have never been conducted
with the participation of the Georgian population. At dierent times, they took place
either in circumstances when they were conducted in accordance with the disput-
able Soviet legislation, in which the Georgian population did not participate, or they
were conducted in the absence of the Georgian population who ed or were forced
to ee. None of the referendums were recognised by the international community.140
All proposals on conducting referendums after the peaceful return of internally dis-
placed Georgians were rejected by the secessionist governments. This aspect makes
the morality of secession arguable as well. However, on practical level, in the ab-
sence of unied standards, it is dicult to articulate in what way the referendum,
even conducted in fair conditions, would contribute to the resolution of the problem
in the circumstances when the conicting parties are incapable of maintaining el-
ementary communication.
Fourthly, so far Kosovo has been recognized by 72 countries (22 EU members)
and the Republic of China (Taiwan) whereas Abkhazia and South Ossetia have been
recognised only by Russia (their close ally), Nicaragua, Venezuela and Nauru. In the
absence of the unanimity with regards to the legality of recognition it is dicult to
articulate whether or not a higher level of recognition indicates statehood.
In Williams v Bru y,141 the Supreme Court of the United States discussed the
validity of acts where a part of the population by separating themselves from the
state establishes independent government. The court stated that the validity of these
See note above, .

Ibid.
See note above, . See also note above, volume I, .
Williams v. Bru y, [] US Supreme Court .
acts: both against the parent State and its citizens or subjects, depends entirely
upon its ultimate success. If it fails to establish itself permanently, all such acts per-
ish with it. If it succeeded, and become recognised, its acts from the commence-
ment of its existence are upheld as those of an independent nation.142 The Court
in its judgment credits recognition by other states as an important element in the
attempt to successfully establish a new state. Nevertheless, legal weight of the act of
recognition is still not well-estimated due to the contradiction between two major
theories: constitutive and declaratory. According to Article 1 of the 1933 Montevideo
Convention a new state should only be recognised by other states if it possesses a
permanent population, a dened territory, a government and a capacity to enter into
relations with other states.143 Moreover, when the break-up of the Soviet Union and
the Socialist Federal Republic of Yugoslavia occurred, it was also suggested that the
succeeded state must also meet international standards relating to human rights and
self-determination, set out in the Guidelines for Recognition issued by the European
Community in late 1991.144 Pavkovic asserts that: the recognition of independence
by other states is vital evidence that the newly proclaimed state satises generally ac-
cepted requirements of statehood.145 Achieving statehood was one of the major con-
cerns of the Badinter Commission,146 which precisely for this reason denied support
to the independence of Bosnia and Herzegovina.147 Nevertheless, it never stopped
the process of recognition of Bosnia and Herzegovina.
As mentioned above there are two main theories on recognition: constitutive
and declaratory. According to the declaratory theory, recognition plays no role in
the creation of a state, whereas the constitutive theory states that the recognition of
a state creates that state and therefore constitutes a further requirement for estab-
lishing a new state.148 Both theories are supported by dierent legal authorities. The
International Court of Justice (ICJ) in the case Reparation For Injuries Suered in
the Service of the United Nations, appeared to support the constitutive theory. It de-
clared that a majority of states had the power, in conformity with international law,
to bring into being an entity possessing objective international personality.149 Even
though the ICJ was referring to an international organisation, Wright argues that
this interpretation is equally applicable to the states because it sets out the position
Ibid. para. .
Montevideo Convention on the Rights and Duties of States Signed at Montevideo,
December , Article . Accessed June . http://www.taiwandocuments.org/
montevideo.htm.
John Dugard and David Rai, The Role of Recognition in the Law and Practice of Seces-
sion, in Secession, International Law Perspectives, ed. Marcelo G. Kohen (Cambridge:
Cambridge University Press, ), .
See note above, .
Ocially known as Arbitration Commission of the Conference on Yugoslavia.
See note above, .
Ibid. .
Reparation for Injuries Suered in the Service of the United Nations, Advisory Opinion,
() ICJ ( April).
of customary international law that: the status of entities subject to international

law is determined by general recognition.150 The legal authority in support of the
declaratory theory can be found in Deutsche Continental Gas Gesellschaft v. the Pol-
ish State.151 The German-Polish Arbitral Tribunal, in discussing the existence of the
new state of Poland, held that the recognition is nothing else than a declaration of
its existence.152 Interesting interpretation of the recognition belongs to the Supreme
Court of Canada. In the Quebec Case, the Court observed that although recognition
is not necessary to achieve statehood, in the context of secession, the viability of a
would-be state in the international community depends, as a practical matter, upon
recognition by other states.153
In this regard it shall be noted that the recognition of Bangladesh by India in 1971
was a key to the success of the latters secession from Pakistan. The same can be said
with regard to the secession of Panama from Colombia in 1903. The recognition of
Panama by the United States was soon followed by others (France, China, Germany,
Australia, and Hungary) and Panama soon became an independent state.154 Con-
versely, the failure to gain international recognition has been a major contributing
factor for the failure of Biafras attempted secession from Nigeria in 1967 or Katangas
secession from Congo in the 1960s.
Examples of successful secessions followed by the signicant international rec-
ognition should serve as a proof of the assumption that the contemporary meaning
of recognition has acquired a more constitutive meaning rather than a declarative
one. Nevertheless, bearing in mind the previous experiences, it could be argued that
the higher the percentage of recognition the better the chances for the UN member-
ship which is probably the major precondition for becoming an independent and
equal member of the international community. However, at this stage the chances of
Kosovo becoming a member of the UN are fairly limited as at the moment they are
openly hampered by Russia and Serbia.
Finally, the 1999 NATO intervention in Kosovo was aimed at preventing ethnic
cleansing of Albanians, whereas Russias support to the secessionist enclaves in the
beginning on 1990s and later in 2008 has been followed by ethnic cleansing of the
Georgian population. The reality of ethnic cleansing in Abkhazia has been conrmed
See note above, .

Ibid.
Ibid.
See note above, .
John Dugard, A Legal Basis for Secession: Relevant Principles and Rules, in Secession
and International Law: Conict Avoidance Regional Appraisals, ed. Julia Dahlitz (Ge-
neva: Asser Press, ), .
in a number of reports155 and declarations.156 The ethnic cleansing of Georgians in-

cluded, the massive expulsion of people, predominantly Georgian, from their living
areas and the deaths of large numbers of innocent civilians,157 which resulted in the
massive changes of the ethnic and demographic composition of region.158 The fact
that the ethnic cleansing was practiced against Georgians during and after the 2008
conict was conrmed as well.159 The arguments of ethnic cleansing and the use of
unlawful external force certainly make a dierence in terms of legality of secession
and makes the moral side of the secessionist claims weaker. Even academics who
allow for a possibility of secession in the most extreme cases,160 question the legality
of secession if it involves the unlawful use of external force, genocide, apartheid,
etc.161 This line of thinking should denitely include the argument of ethnic cleans-
ing. Moreover, some academics argue that harmful consequences of secession, can
override the right, when exercised in such a way that fundamentally endan-
gers the interests of the inhabitants of the seceding region.162 Therefore, if a state
opposing secession is prohibited from using ethnic cleansing as a response to the
unilateral secession (which still has not been universally recognized as a legal right),
the same requirement must also apply to seceding people. And if the argument for
Georgia Human Rights Practices , Report, (Washington: U.S. Department of

State Report, ). Accessed November . http://dosfan.lib.uic.edu/ERC/democ-
racy/_hrp_report/hrp_report_eur/Georgia.html. See also, Georgia/Abkhazia,
Violations of the Laws of War and Russias Role in the Conict, Report, (New York:
Human Rights Watch, ). Accessed October . http://www.hrw.org/sites/de-
fault/ les/reports/georgia.pdf.
See the Conclusions of Budapest Summit , Organisation for Security and Co-op-
eration in Europe, OSCE. Accessed October . http://www.osce.org/documents/
mcs///_en.pdf. See also the Conclusions of Lisbon Summit , Organi-
sation for Security and Co-operation in Europe, OSCE Accessed November .
http://www.ena.lu/osce_summit_document_lisbon_-_december_--. The
Conclusions of Istanbul Summit , OSCE, para. . Accessed October .
http://www.osce.org/documents/mcs///_en.pdf ; GA Res. /, UN Doc.
A/RES// ( May ), On Status of internally displaced persons and refugees
from Abkhazia, Georgia. Accessed October . http://daccessdds.un.org/doc/
UNDOC/GEN/N///PDF/N.pdf?OpenElement.
Ibid.
See, The Conict in Transcaucasia, Report Doc. (Strasbourg: Council of Europe,
), para. . Accessed September . http://assembly.coe.int/main.asp?Link=/
documents/workingdocs/doc/edoc.htm.
See note above, volume I, , para. . See also note above.
See note above.
Marc Weller, Why the Legal Rules on Self-determination Do Not Resolve Self-determi-
nation Disputes? in Settling Self-Determination Disputes, Complex Power-Sharing in
Theory and Practice, eds. Marc Weller and Barbara Metzger (Leiden: Martinus Nijho
Publishers, ), .
Avishai Margalit and Joseph Raz, National Self-Determination, Journal of Philosophy
(): -.
ethnic cleansing practiced by the government of Miloevi against the Kosovar Al-
banians was powerful enough to allow the external intervention in the conict with-
out the authorization of the Security Council of the United Nations, it is certainly
strong enough to cast shadow over the legal and moral claims of the secessionists.
Importantly, the fact of ethnic cleansing also questions the ability or commitment
of secessionists to perform their political function by establishing a state where
human and minority rights are respected and secured. Furthermore, recognising
claims of people who seceded and acquired the territory by use of the abhorrent
practice of ethnic cleansing would mean accepting the right to unilateral seces-
sion through the use of violence resulting in the violation of international human
rights and humanitarian laws,163 and involving related crimes against humanity and
war crimes. Moreover, the aspect of unlawful use of external force (as considered
by the international organisations including the EU)164 should not be left without
consideration either. This observation is reiterated in the ICJ Opinion Accordance
with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo.165 The ICJ responds to the submission from the various participant states
referring to the practice of condemning unilateral declarations of independence by
the Security Council.166 It emphasises the fact that the reason for condemning these
particular declarations was not the unilateral character of them but: the illegal-
ity attached to the declarations of independence... from the fact that they were, or
would have been, connected with unlawful use of force or other egregious violations
of norms of general international law, in particular those of a peremptory character
(jus cogens).167 According to the ICJ this specic observation serves as a dierentiat-
ing aspect between the Declaration of Independence by Kosovo and other declara-
tions by Southern Rhodesia and Northern Cyprus respectively, condemned by the
Security Council.168 Even though the above observation is in consonance with the
general rules of self-determination, it should be mentioned that while making this
observation, the ICJ left without a mention the number of unlawful acts committed
against the Kosovar Serbs after the return of Albanians in Kosovo.169
See United Nations Commission of Experts, Report, May . Accessed October

. http://www.his.com/~twarrick/commxyu.htmpar. See also Security Coun-
cil Resolutions , UN Doc. S/RES/ ( August ); , UN Doc. S/RES/ (
October ); , UN Doc. S/RES/ ( February ); , UN Doc. S/RES/
( April ), and , UN Doc. S/RES/ ( September ); and UN General
Assembly Resolutions /, UN Doc. A/RES// ( August ) and /, UN
Doc. A/RES// ( December ).
See note above.
See note above.
Ibid. para. .
Ibid.
See note above, paras. , .
See, Clive Baldwin, Minority Rights in Kosovo under International Rule (London: Mi-
nority Rights Group International, ). Accessed July . http://www.minorit-
yrights.org/download.php?id=.
After identifying and assessing the common and distinctive elements in all three
cases, it may well be stated that distinctive elements (even though not all of them
are very powerful) still manage to outweigh the common points identied above.
As mentioned above, this is apparently not for the rst time when the distinction is
made between these three disputes. It is true that recognition by individual states
is, essentially a matter of a policy even interlaced with some legal considerations,170
and, not surprisingly, the Russian Federation which rst tried to justify the recogni-
tion of the secessionist enclaves by rejecting the uniqueness of the Kosovo case as
claimed by the Western governments and Kosovo itself; and by outlining the simi-
larities between these three cases recently slightly readjusted its position. Particu-
larly, by engaging in renewed negotiations on the Nagorno-Karabakh and Trans-
Dniestrian regions, the Russian Federation is trying to demonstrate that military
intervention in these regions is out of the question.171 Moreover, now it is trying to
stress the uniqueness of the military intervention in Georgia, by justifying earlier
claims of genocide of South Ossetians (which, failed to be true) and its citizens origi-
nated as a result of its passport oensive from the late 1990s onwards in Abkha-
zia172 and South Ossetia.173 This included the mass conferral of Russian citizenship to
persons living in the breakaway regions thereby also granting them entitlement to
Russian pensions and other social benets174 which was particularly signicant for
residents of South Ossetia and Abkhazia following the imposition of a visa regime
between Russia and Georgia in 2000 and eectively resulting in a visa-free regime
for South Ossetia and Abkhazia.175 In addition, Russian passport-holders in South
Malcolm N. Shaw, The Role of Recognition and Non-Recognition with Respect to Se-
cession: Notes on Some Relevant Issues, in Secession and International Law, ed. Julie
Dalitz (Geneva: Asser Press, ), .
Ekaterina Stepanova, Policy Brief Regarding South Ossetia and Abkhazia: Placing the
Conict in Context, November . Accessed November . http://books.sipri.
org/ les/misc/SIPRIPB.pdf.
Inal Khashig, Abkhaz Rush For Russian Passports Tbilisis Relations with Moscow
Worsen as Hundreds of Thousands of Abkhazians Take up Russian Citizenship, In-
stitute for War and Peace Reporting, February . Accessed October . http://
iwpr.net/report-news/abkhaz-rush-russian-passports.
... [T]he new Russian Law on Citizenship which entered into eect in the year
regulated in its Articles and admittance to Russian citizenship in a simplied
procedure and thus opened broader avenues soon to be exploited by thousands of new
applicants from South Ossetia and Abkhazia. See note above, volume II, .
Ibid. . See also, Situation in Georgia and the Consequences for the Stability of the
Caucasus Region, Doc. , Strasbourg, PACE, September , para. . Accessed
September . http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/
Doc/EDOC.htm. See also Maria Danilova, Russia launches passport oensive,
Associated Press, February . Accessed September . http://www.dawn.
com////int.htm.
Ibid. See also, PACE, Honouring of Obligations and Commitments by Georgia, Re-
port, Doc. , September . Accessed September . http://assembly.
coe.int/Mainf.asp?link=/Documents/WorkingDocs/Doc/EDOC.htm.
Ossetia took part in the Russian presidential election in March 2008.176 In 2002,
the Parliamentary Assembly of the Council of Europe (PACE), in a report dealing
with the Situation in Georgia and the consequences for the stability of the Caucasus
region, called upon the Russian Federation inter alia: to refrain from any action or
declarations which might interfere in the internal aairs of Georgia or violate the
sovereignty and the territorial integrity of Georgia... from any unilateral measures
aecting Georgia and its citizens, in particular as regards Abkhazia and South Os-
setia including in the elds of economic assistance and the freedom of movement
of persons and goods, in particular, with respect to visas, customs and passport
issues177 By doing so, Russian ocials are trying to play the Western Game by
making unique cases for Abkhazia and South Ossetia, which would justify recogni-
tion in the same manner as Kosovo. It may well be stated that: the justication for
stretching the limits of international law in one case on the grounds of the unique
circumstances is itself precedent setting,178 or, as the English saying goes, once is an
occasion, and twice is a tradition. Therefore, we face a dilemma resulting from the
case of Kosovo, which obviously has far-reaching and confusing eects and impacts
on such cases, like Abkhazia and South Ossetia. This is because it is quite dicult to
prove the uniqueness of Kosovo and by this prevent its further applicability.
5 Conclusion
Before assessing the actual impact of the case of Kosovo on the 2008 developments
in Georgia, it should be reiterated that all three cases represent a clear example of
failed diplomacy. The whole problem of lack of clarity around the subject of self-de-
termination exacerbates the contradiction and controversy. As a result, the chances
for nding a mutual agreement and/or a compromise are dramatically lowered.
Consequently, the opportunity for dierent, sometimes even subjective, interpreta-
tions of law and practice is wide open and the absence of solution that could contrib-
ute to the clarity around the subject makes the whole problem even more dicult.
It becomes clear that the world has not really moved any further in terms of crystal-
lising the vague elements surrounding secession. Some academics, including Bor-
gen, argue that: it cannot seriously be argued today that international law prohibits
secession.179 This statement can be supported with the views regarding acceptable
secession in extremely exceptional circumstances.180 Is this the case in Kosovo? If so
should it be extended to the cases of Abkhazia and South Ossetia? Unfortunately,
after taking into consideration the views presented here, it becomes obvious that
Kosovo has problems in qualifying as a thoroughly unique case. It is a genuinely
See note above, .

See note above.
See note above.
Ibid.
See note above.
complicated case: demonstrating the ways in which political interests of states af-
fect how the international law is given eect.181
Today the position regarding the independence of Kosovo is dramatically dier-
ent from the one held in 1991 when Badinters Commission rejected the request of
Kosovos Albanian political leadership for the recognition of Kosovo.182 Nowadays
the argument on statehood seems slightly obsolete and it is certainly not the most
decisive element in this case, neither the contemporary arguments regarding the
non-intervention from third-party183 nor premature recognition184 or uniqueness
seem to contributive greatly to the clarity and unanimity around the problem of
secession. In fact, considering the example of Georgia it may well be stated that it
caused additional confusion and had an epidemic eect which ended up in a violent
conict.
Previous experiences have demonstrated that the right to secession tends to re-
main an extremely exceptional lacking universal recognition. It is unlikely that the
contradictory nature of the case of Kosovo and the absence of any agreement on
the most decisive elements of secession would allow the international recognition
of a right to secession. The above mentioned leads to an assumption that the whole
process of the application of the provisions for external self-determination, i.e. se-
cession, will remain erratic for some time to come. Perhaps it is meant to remain
so in the face of the lack of clarity and the absence of recognised, impartial and
eective international mechanisms, which evidently creates: a very large gap in
contemporary international relations.185 This observation can be supported by the
recent opinion of the International Court of Justice (ICJ) Accordance with Inter-
national Law of the Unilateral Declaration of Independence in Respect of Kosovo.186
The hope that there could have been some clarity brought in with regards to the
case of Kosovo by the ICJ arose after the United Nations General Assembly voted
in favour of the resolution to give an opinion on whether Kosovos Declaration of
Independence from Serbia was in compliance with international law.187 The results
of the voting demonstrated signicant division amongst the member states of the
Christopher J. Borgen, Kosovos Declaration of Independence: Self-Determination, Se-

cession and Recognition, ASIL Insight : ().
See note , .
According to Rai, third state recognition of the entity concerned is premature and a
violation of the prohibition of non-intervention, David Rai, Statehood and the Law of
Self-Determination (Leiden: Kluwer, ), -.
According to Rai premature recognition is a precipitate act from a political and retro-
spective point of view. Ibid. .
John Packer, Considerations on Procedures to Implement the Right to Self-Determi-
nation, in The Implementation of the Right to Self-Determination as a Contribution to
Conict Prevention, eds. Michael C. Van Walt Van Praag and Onno Serro (Barcelona:
UNESCO Centre of Catalonia, ), .
See note above.
Backing Request by Serbia, General Assembly Decides to Seek International Court of
Justice Ruling on Legality of Kosovos Independence, UN Doc. GA/, October
United Nations.188 Even though none of the states who voted against the resolution
challenged the authority of the ICJ, all of them felt free to describe the resolution
as politically manipulative with a potential to cause the deterioration of the situa-
tion on the ground.189 Some of them stated that Kosovos independence is, and will
remain, a reality.190 The member states that supported the resolution believed that
the advisory opinion from the ICJ would provide politically neutral and judicially
authoritative guidance to many countries still deliberating how to approach such
unilateral declarations. If so, Georgia should have been one of the countries eager to
obtain an authoritative opinion from the ICJ. However, it abstained.
The question on which the Advisory Opinion of the ICJ has been requested was
as follows: Is the unilateral declaration of independence by the Provisional Institu-
tions of Self-Government of Kosovo in accordance with international law?191 It may
well be stated, however surprising it may sound, that the authors of the question
failed to take into consideration the full political complexity of the case when phras-
ing the question. It should have been predictable that bearing in mind the political
and legal complexity surrounding this problem, there was a strong possibility that
the ICJ would have treated the question very narrowly, i.e. by escaping interpretation
of such fundamental issues as the right of self-determination and even more, reme-
dial secession, regardless of the fact that the Declaration of Independence was purely
aimed at secession. It should be mentioned, however, that a specic question could
have failed to gain support from in the General Assembly taking into consideration
the division among member states which became obvious during the voting process.
After conducting a legal analysis including a historical review of declarations of
independence the ICJ concluded that that international law contained no prohibi-
tion of declarations of independence.192 Even though, the ICJ linked the problems of
declaring independence and the importance of self-determination to each other, it
eectively illustrated its unwillingness to deliberate over the issues of secession by
considering it unnecessary, to resolve these questions in the present case.193 The
. Accessed August . http://www.un.org/News/Press/docs//ga.

doc.htm.
member states voted in favour, states against and members abstained from vot-
ing. See, ibid.
Ibid.
We question the utility of the question that has been proposed by Serbia. An advisory
opinion cannot in itself be determinative of Kosovos status, Quote from the statement
of the British Ambassador John Sawers, in Margaret Besheer, UN General Assembly to
ICJ for Ruling on Kosovo Independence, Voice of America, October . Accessed
August . http://www.voanews.com/english/archive/-/---voa.
cfm?CFID=&CFTOKEN=&jsessionid=bfcbaacee
be.
GA Res. /, UN Doc. A/RES//, October . Accessed September .
http://www.asil.org/ les/ilib_r.pdf.
Ibid. para. .
approach of narrow interpretation is illustrated in a comparative analysis conducted

by the ICJ with regards to the opinion of the Supreme Court of Canada in Re Seces-
sion of Quebec. The ICJ, once again, demonstrated its reluctance to touch upon the
issues of remedial secession, when declaring that in contrast to the Supreme Court it
simply was not asked to provide its opinion on: whether international law generally
confers an entitlement on entities situated within a State unilaterally to break away
from it.194 It reiterated that: by contrast, the General Assembly has asked whether
the declaration of independence was in accordance with international law... the task
that the Court is called to perform is to determine whether or not the declaration
of independence was adopted in violation of international law.195 Therefore, the ICJ
considered that it was not necessary to resolve questions of self-determination and
remedial secession.196
Two subsequent nding of the Court are of signicance. First, the ICJ stated that
Resolution 1244 did not prohibit the Declaration of Independence because it did not
contain an explicit prohibition of such act.197 In doing so, the ICJ validated the acts of
recognition of Kosovo by several member states that simultaneously were bound to
respect the principle of territorial integrity, which was, in the words of ICJ, conned
to the sphere of relations between States.198 Second, it found that those declaring
independence did not act: as one of the Provisional Institutions of Self-Government
within the Constitutional Framework, but rather as persons who acted together in
their capacity as representatives of the people of Kosovo outside the framework of
the interim administration.199 The former, according to Doebbler, provides national
liberation movements around the world a basis for declaring the independence of
territory and the persons who they represent as long as they are not acting as will
most often be the case within the established legal order.200 This could certainly
lead to the establishment of a dangerous precedent. Therefore, the statement made
in the beginning of the chapter regarding the lack of clarity around the most fun-
damental aspects and concepts of the right of self-determination remains valid. The
ICJ failed to establish a set of clear legal standards applicable in future cases, which
would contribute to the clarication of the problem and prevent further complica-
tions.
Apart from the vague legal interpretations, it was interesting to observe the politi-
cal reactions of member states regarding the opinion of ICJ. Not surprisingly, reac-
tions were mixed. They were mixed in the Caucasus as well. Armenia welcomed the
Ibid. para. .
Ibid. para. .
Ibid. paras. -.
Ibid. para. .
C. Doebbler, The ICJ Kosovo Independence Opinion: Uncertain Precedent, Jurist,
July . Accessed September . http://jurist.org/forum///the-icj-kosovo-
independence-ruling-an-uncertain-precedent.php.
opinion but no indication has been given as to whether it is going to recognise Kosovo
in the near future, given pressure from its allies in Moscow.201 Azerbaijan condemned
the decision and Kosovos secession as completely illegal, a stance taken by a number
of other countries with active secessionist entities, such as Moldova and Cyprus.202
Abkhazia and South Ossetia endorsed the opinion and, ...have cited it as a justica-
tion for their own rights of secession, despite undoubted opposition from Moscow.203
The US Assistant Secretary of State Philip Gordon said that, many other dozens, of
states had been awaiting the ruling before recognizing Kosovos independence. None-
theless, a surge in recognition following the opinion did not materialise.204 So far,
Honduras, Kiribati and Tuvalu are the only states to recognise Kosovo after the ICJ
Opinion was delivered.205 China and Russia have indicated their resolution to block
Kosovos membership in the UN. So far, then, little has changed.206
It may well be stated that the confusion and controversy surrounding Kosovo
was added to by the opinion of ICJ. Regardless of who started the war last August in
Georgia, it is true that both sides had legitimate fears and both of them were ready
for war. As many commentators claim, it is obvious that without the Kosovo argu-
ment the Russian Federation were unlikely to have intervened in Georgia and more
so, subsequently recognised the independence of Abkhazia and South Ossetia.207
The example of Kosovo gave the Russian Federation the reference and condence to
do so. The opinion of ICJ will probably give other states the condence to recognise
and continue exploiting double standards and exploring the opportunities for po-
litically motivated legal interpretation. Therefore, it seems that self-determination is
still, too important to be left to lawyers,208 and will long remain open to political
decisions and manipulations despite the fact that this poses a danger to the whole
UN Charter system and peace. This most certainly will not have any positive impact
on peace building activities in Georgia and will for the foreseeable future prevent the
full realisation of the right to self-determination of peoples living in the troubled
regions of Georgia.
To Recognise or not to Recognise, The Economist, July . Accessed August

. http://www.economist.com/blogs/easternapproaches///reactions_icj_kos-
ovo_ruling.
Ibid.
See note above.
W. Wilson, Wishful Thinking about ICJs Kosovo Ruling, International Aairs Review,
September . Accessed September . http://www.iar-gwu.org/node/.
Honduras recognizes Kosovo, New Kosova Report, September . Accessed
October . http://www.newkosovareport.com//Politics/Honduras-
recognizes-Kosovo.html.
Ibid.
A Year in the Life of Kosovo, The Economist, February . Accessed September
. http://www.economist.com/opinion/displaystory.cfm?story_id=.
Hurst Hannum, Right to Self-Determination in the Twenty First Century, in Hu-
man Rights in the World Community, eds. Richard Pierre Claude and Burns H. Weston
(Pennsylvania: University Pennsylvania Press, ), .
Chapter 14 The Basque Country: With or Without the
Spanish Constitution, Like or Unlike the
Kosovo Precedent?
MIRYAM RODRGUEZ-IZQUIERDO SERRANO
1 Introduction
Why has the Spanish government refused to recognise the independence of Kosovo?
Spain announced that refusal from very moment of the Declaration of Indepen-
dence, the 18 February 2008 and stills holds to it, even after the Advisory Opinion
of the International Court of Justice that has recently, and not without controversy,
validated the act of the, representatives of the people of Kosovo.1 Even though the
majority of EU member States had already supported the Declaration of Indepen-
dence, from the rst, the ocial position of the Spanish Foreign Aairs Oce was
that Kosovo Declaration of Independence did not respect international law and, as
a consequence, Spain could not support it. With the occasion of the Spanish Presi-
dency of the European Union, which began the 1 January 2010, there was an ocial
statement from the Spanish Ministry of Foreign Aairs declaring that during the
six-months presidency Spain was willing to contribute to the peace, stability and
development of the Balkans, including Kosovo, but that none of those actions or
acts could be deemed or interpreted neither as a change of Spanish position regard-
ing Kosovo, nor as an act of reconnaissance of the independence of the territory.2 It
seems that the Spanish authorities have a rm idea on the illegality of the Declara-
tion of Independence.

respect of Kosovo (Advisory Opinion), ICJ para. ( July).
The statement was published on the January in the Spanish Ministry of Foreign
Aairs website. Accessed February . http://www.maec.es/es/Home/Paginas/
HomeEs.aspx. The position of the Spanish Government had already been explained in
some academic works. For instance: Cesreo Gutirrez Espada and Romualdo Bermejo
Garca, Kosovo de nuevo: apuntes crticos sobre su declaracin de independencia, su
constitucin y otras reexiones, Real Instituto Elcano: Working Paper /, Sep-
tember . Accessed December . http://www.realinstitutoelcano.org/wps/
portal/rielcano/MisionesDePaz/Kosovo/Publicaciones.
The written statement that Spain presented before the ICJ argued that the Decla-
ration of Independence violated the principle of territorial integrity and sovereignty
of Serbia, which was engraved in the United Nation Security Council Resolution
1244.3 Notwithstanding those ocial reasons, a relationship between such a rm
refusal and the independence claims of some Autonomous Communities within the
Spanish state was suggested. This suspicion, always denied by the Spanish represen-
tatives, could be loosely connected to that main argument of the Spanish written
statement before the ICJ: the principles of state sovereignty and territorial integrity,
which meant conceiving of Kosovo as a part of a Serbia. Following that reasoning,
the territory of Kosovo could not decide unilaterally to secede from Serbia. But the
suspicion was even more strongly rooted in a dierent supposition: if Spain recog-
nised Kosovo, would proceedings for the secession of territories with nationalist
feelings, such as Catalonia or The Basque Country, have to be allowed?4 Now that
the Advisory Opinion of the ICJ has considered that Kosovos Declaration of Inde-
pendence does not conict with international law, the Spanish Government insists
on its refusal to accept Kosovo as a state. Where is the obstacle now? Is that supposi-
tion more than a speculation?
But we should keep on asking: is the situation of the Autonomous regions in Spain
similar to that of Kosovo in the context of its independence? Obviously not, but: is
there any resemblance? We could guess so. Are the independence claims of the na-
tionalist parties in Spain based on the same arguments as Kosovo used? How would
an international law perspective consider it? Which is the constitutional interpreta-
tion of those matters? Can the Spanish State authorities fear that if they do agree to
The written statement of the Kingdom of Spain was issued in April by Concepcin
Escobar Hernndez, Head of the International Law Department, Ministry of Foreign
Aairs and Cooperation: Accessed December . http://www.icj-cij.org/docket/
les//.pdf.
This position is explained, among others, in Cesreo Gutirrez Espada and Romualdo
Bermejo Garca, Kosovo de nuevo: apuntes crticos sobre su declaracin de independ-
encia, su constitucin y otras reexiones, Real Instituto Elcano: Working Paper /,
September . Accessed December . http://www.realinstitutoelcano.org/
wps/portal/rielcano/MisionesDePaz/Kosovo/Publicaciones.
After Kosovo independence, in Spain it was remarked that intense debate would be
guaranteed, not only because of Kosovos situation itself and Spanish position on the
matter, but, because whatever solution is agreed for Kosovos status will serve as a
precedent for similar cases in Europe and elsewhere. Romualdo Bermejo Garca and
Cesreo Gutirrez Espada, Kosovos Independence from the Perspective of the Right
to Free Determination, Real Instituto Elcano: Working Paper /, April . Ac-
cessed December . http://www.realinstitutoelcano.org/wps/portal/rielcano/Mi-
sionesDePaz/Kosovo/Publicaciones. The idea of a breach of international law has been
maintained since the end of the nineties by experts such as the above mentioned or
Remiro Brotns. See Antonio Remiro Brotns, Un nuevo orden contra el Derecho in-
ternacional: el caso de Kosovo, Revista electrnica de Estudios Internacionales ().
Accessed December . www.reei.org.
Chapter 14, Miryam Rodrguez-Izquierdo Serrano The Basque Country 429
recognise Kosovo they would be, at the same time, giving nationalists a legal reason
to secede?
Up to this moment, the ideas about self-determination leading to secession had
foundations in international law in the case of the right to self-determination of
colonial territories. Regarding constitutional law, it is known that neither federal
nor, of course, unitary States tend to include secession clauses within their Constitu-
tions. The only constitutional interpretation of this matter was delivered by Canadas
Supreme Court in 1998. In reference to Quebec, the Court stated that in a province, a
clear majority voting on a clear question in favour of secession would give the prov-
ince legitimacy to pursue secession through negotiations, with no conclusion prede-
termined by law.5 That meant that a nal conclusion of those negotiations, even after
a referendum in a territory within the state, should be considered a political result of
a negotiation, not a legal or constitutional right to self-determination of that part of
the territory of the state. It was, as Anderson says, less than a right to secede, but a
moral impulse to the possibility of asking for secession.6
The pseudo-federal Spanish Constitution of 1978 is no dierent from most oth-
ers and does not allow secessions from parts of the territory. It makes reference to
a right to autonomy for nationalities and regions within the State, in Article 2, but
not to a right of self-determination by those entities that could mean secession. But,
could the autonomy principle within the Spanish Constitution lead to a dierenti-
ated status for one autonomous community, something in between secession and
the current right to autonomy? Could it entail something like free association for
some territories within the state?
We can search for answers through approaching the case of the Basque coun-
trys independence claims. Why the Basque country? First of all, the most persistent
claims since the entry into force of the Spanish Constitution have been by Basque
nationalists. Some of those claims have even been identied, directly or indirectly,
with the terrorism of the ETA, which adds the issue of violence to a political contro-
versy. In a second order of ideas, if we talk about another strong nationalist aspira-
tion in a Spanish territory, those of Catalonia and nationalist Catalonian parties, we
could say that they have chosen, at the moment, a dierent strategy. Instead of ask-
ing for an independent status, they have used the strategy of scheduling an Autono-
mous Community with very wide spheres of competences through a reform of the
Statute of Autonomy, approved in 2007, within the legal and political frame of the
Spanish constitutional system. Certainly, and in spite of such a legal strategy, some
aspects of that reform have recently been declared contrary to the Constitution by
the Spanish Constitutional Court, in a ruling that has reopened the debate about
autonomy and self-determination in Spain.7 In a third and last perspective, there is
a possible chronological connection between Kosovos Declaration of Independence,
Reference re. Secession of Quebec [] Supreme Court Reports (Canada), .

George Anderson, Federalism: An Introduction (Oxford: Oxford University Press,
), .
Spanish Constitutional Court Judgment / of June , Boletn Ocial del
Estado No. , July .
February 2008, and the proposal for a referendum in the Basque country on the start
of an independence process in June 2008.
Whether that was a coincidence, or not, will be the focus of this analysis of the
political strategy for Basque secession that the PNV (Spanish acronym for Basque
Nationalist Party) developed from 2001 to 2008. In the following pages, I will present
the general lines of the tension between the Spanish State and the Basque country
with a special attention to the main characteristics of the conict from the point of
view of secessionism, both, under international and constitutional law. In that con-
text, I will comment on how the Spanish Constitution tried to nd a solution to ter-
ritorial diversity in Spain through the autonomies, how the Basque country received
that constitutional project and how everything has worked since 1978 until now.
Those approaches will be preliminary to the study of the two main independence
attempts that the Basque government scheduled as questions of law in 2003 and
2008. Our aim is to be able to explain the situation of the Basque Country within
the Spanish state from the point of view of international self-determination require-
ments, just to check if Kosovo precedent is really a threat for Spanish unity as a state.
a Is the Basque Country a Part of or Something Different from the

Spanish State?
Obviously, a previous step for all those purposes should be determining which ter-
ritories within the Spanish state we are speaking of. In a cultural sense, as well as in
nationalist claims, the Basque country is said to be composed by territories in the
north of Spain Alava, Guipuzcoa, Vizcaya and Navarra and the French areas
of Labourd, Basse-Navarre and Soule, in the south-west of France. So, from a state
point of view, that cultural region is divided between the sovereignty of two dierent
States: France and Spain. Within the Spanish state, the territory is also divided in
two dierent Autonomous Communities: Euskadi including the three provinces
of lava, Guipuzcoa and Vizcaya and Navarra. As we will see, this last division
was not obliged by the Spanish Constitution, but it was chosen by the province of
Navarra when the autonomous communities were created, between 1979 and 1982,
and has been maintained since.
So, as we are talking about the autonomous community, from this moment on,
the Basque country will be identied with the autonomous community of Euskadi
and the provinces of lava, Guipozcoa and Vizcaya. These provinces have the sin-
gularity of being, with Navarra, the only Spanish territories that have preserved part
of their ancient fueros: a group of historic privileges, rights and institutions for self-
administration that the Kings of Spain had to swear and respect. For other parts of
Spain the fueros had disappeared during the XVIII century, after the change of royal
dynasty: Bourbon for Habsburg. After an additional provision of the Spanish Con-
stitution (Number 1), Navarra and the Basque provinces maintain a special rgime
for taxes and self-administrative institutions, all of which are recovered and updated
by their Statutes of Autonomy. This means that the legal framework and legitimacy
for those historic rights is not history itself, but the recognition and inclusion of
them in the constitutional system. For the Spanish Constitutional Court, and this is
important, the supremacy of the Constitution is the foundation of the recognition

and preservation of the territorial historic rights, so any contradiction between al-
leged historic rights and the constitutional principles would be solved in favour of
the latter.8
2 The Past and Present of the Basque Autonomous Community

When the Spanish Constitution came into force, in 1978, it included, in Article 2,
the possibility for the dierent regions and nationalities within the national territory
to become autonomous through the approval of Statutes of Autonomy for each of
them. Autonomy was recognised as a right to be exercised by regions and nationali-
ties, and in a procedural sense it should be exercised by bordering provinces with
common historic, cultural and economic characteristics, as well as by insular terri-
tories and provinces with a historic regional status, in Article 143. But the Constitu-
tion, in a transitional provision, Number 2, also recognised a special status for those
territories which in the past had approved by plebiscite draft Statutes of Autonomy
and, as a consequence, had recovered the provisional self-government they had lost
due to the end of the Second Republic (1931-1936) and the Civil War. Those were the
cases of Catalonia and the Basque country. The former Statute of Autonomy for the
Basque country, dated 1936, included the same three provinces of present Euskadi.
Two attempts to include Navarra were rejected by the parties in the Second Repub-
lic. When the present Statute of Guernika was approved in 1979, Navarra could have
been made part of Euskadi. The Spanish Constitution allowed that, with the consent
of the province. But an assembly of members of parliament from Navarra refused to
be part of Euskadi. Consequently, it has formed a separate autonomous community
since 1982. Notwithstanding, the Statute of Gernika still allows that province to join
Euskadi if that were the will of the Navarrese in Article 2 of that Statute.
Therefore, since 1979 the Basque country has a rgime of self-government, framed
by the Spanish Constitution, including an autonomous government, elected by the
autonomous parliament, and a wide sphere of competences. Following the Consti-
tution, the Statute of Guernika was rst ratied by a referendum held in the three
Basque provinces and then approved by the Spanish parliament with an absolute
majority. This means that the Statute of Gernika is the product of joint will of the
Spanish representatives and of the citizens of the Basque country. The latter had
also taken part in the approval of the Spanish Constitution by the referendum of all
Spanish people, which, incidently, was accepted by a majority in all three provinces.
Since then, there has been a constant participation of Basque nationalist parties not
only in the autonomous parliament and government, which has until 2009 always
been lead by the Basque Nationalist Party (PNV), but also in the Cortes Generales,
the Spanish parliament.
Spanish Constitutional Court Judgment / of April, Boletn Ocial del Estado

No., May .
Then comes one of the ideas that we suggested before, but left behind, as ques-
tions to nd answers to: could we think of the Basques as a people whose self-de-
termination is not possible within the state and, as a consequence, that impossibil-
ity would allow them to claim for secession under the rules of international law?
It would be dicult to assent to that consequence as international law has until
now restricted the recognition of independence on the basis of self-determination
to nations that had made themselves free from a former colonial status. The Basque
country is a part of a democratic state in which the Basque citizens choose their
representatives to the central parliament and have their own institutions and rule.
Would international law support a unilateral secession of the Basques, which would
break the sovereignty of Spain? After the ICJ Advisory Opinion of 22 July 2010, this
is a tricky issue. The strategies of nationalist politicians, as we will see, have for the
moment moved in the direction of self-determination by asking for a higher level
of autonomy through legal instruments provided by the constitutional system. The
problem is that the use of those instruments has not been done in accordance with
their nature. A system which accepts autonomy but neither secession nor free asso-
ciation, does not allow using democratic institutions and proceedings to obtain such
results. Legal forms can cover, but not legitimate the breach of a constitution which
does not allow the secession of a part of the state.
a The Question of Sovereignty within the Spanish Constitution

Although there are theories considering that federated states, within a federal state,
would maintain sovereign rights, in fact federal constitutions do not tend to con-
sider the possibility of a federate state separating from the federation. If that is the
way things work in federal states, one can guess that in a pseudo-federal state like
Spain, the possibility of the secession of an Autonomous Community is even slim-
mer. Article 1.2 of the Spanish Constitution establishes that National sovereignty
belongs to the Spanish people, from whom all State powers emanate. If we think
of self-determination as a faculty to decide with sovereignty the political destina-
tion of a territorial community, in Spain there are no ethnic, cultural or territorial
fractions of the people. There is a homogeneous holder of sovereignty, not a multiple
one, meaning that there are pieces of sovereignty in dierent parts of the territory.
Article 2 conrms that the, indissoluble unity of the Spanish Nation, is the basis
of the Constitution and, although there are nationalities and regions with self-gov-
ernment rights, there is only one Nation and one Sovereign. The Spanish Nation is
the community integrated by past, present and future generations of that Spanish
people who own the sovereignty and who democratically have decided to be ruled
by a concrete Constitution.9
Juan Jos Solozbal Echavarra, El problema de la soberana en el Estado Autonmico,

Fundamentos: Cuadernos monogrcos de teora del estado, derecho pblico e historia
constitucional (): -. Accessed November . http://web.uniovi.es/con-
stitucional/fundamentos/Portada.html.
The peculiar proceeding of approval of the Statutes of Autonomy demonstrates

that to attain regional self-government, the Communities must have the previous
consent of the Spanish people, through its representatives in parliament. The same
requirement is needed to reform the Statutes of Autonomy: even if a referendum
within the regional territory is sometimes held to ratify certain Statutes or their
reforms, the last word is always for the Cortes Generales (Articles 147.3 and 151.2,
Spanish Constitution). The reasons for this can be found in the foundation of the
Communities as territorial spheres of public powers within the State that, in this
legal conception, did not exist before the Constitution, but because of and subject to
the Fundamental Law. The historic rights of certain territories, such as the Basque
provinces, are still preserved because the Spanish Constitution recognised that pos-
sibility. The supremacy within the State is held by the Constitution and, in a case
on non-compliance of constitutional obligations from the part of an Autonomous
Community, there is a mechanism through which the Spanish Government can take
all the measures necessary to compel the Community to meet such obligations (Ar-
ticle 155). It is also established that, under no circumstances shall a federation of
self-governing Communities be allowed (Article 145). And there are competences
in Article 149, which are listed as exclusive to the State, among which the essential
attributes of sovereignty can be found: nationality, international relations, defence
and armed forces, and currency. Needless to say, the European Union changes the
sense of many of these exclusive competences, and also changes the role of the state
and of the Autonomous Communities within the European context, but this may
not be the place to make reections about the meaning of sovereignty after supra-
national integration.10
Basque nationalists have used the system and, for their independence claims
and attempts, they have used the democratic institutions. They have tried, if not
for complete independence, then a dierentiation from the Spanish State, looking
for models of association regarding the sovereignty of the Basque country. So the
strategy moves in a constitutional direction: a direction that oers paths to progress
to independence but not the actual exit of independence.
3 The Independence Attempts and the Constitutional Reaction:

2003 and 2008
From its beginning, one peculiarity in the constitutional design of the autonomies
was that the Constitution only contained the initial guidelines to construct both the
map of territorial autonomies and the future development of the powers and com-
petences of regional self-governments. The structure of the relationship between
state and autonomies should be a product of political agreements and normative
decisions. The Spanish Constitution previewed how the autonomic processes should
begin, established the limits, but did not point to a concrete ending.
For such an analysis, see Neil MacCormick, Questioning Sovereignty: Law, State and
Nation in the European Commonwealth (Oxford: Oxford University Press, ).
So, after the last transfer of competences from the state to the autonomies dur-
ing the 90s, the model had two choices: it could stop or it could go on, as the Stat-
utes could be reformed and changed within the limits of the Constitution. The nal
choice proved the openness and dynamism of the system, because since 2004 until
now nine of seventeen autonomies have made proposals to reform their Statutes. Six
of them have had successful endings, although some articles of the Catalonian Stat-
ute have been declared contrary to the Constitution by the Constitutional Court,
which means that they are deemed void, and some others have been object of con-
stitutional interpretation, which means that those must be interpreted only in the
sense marked by the Court. Another two Statute reforms are still in process in the
Cortes Generales, after having been approved in the respective regional parliaments.
But the thing is that only the Basque proposal for a reform in 2005 was directly
refused by the Spanish Congress of Deputies.11 Why? Because it was more a consti-
tutional change than a reform of the Statute of Gernika. The proposal tried to assert
the right of self-determination of the Basque people as such. It meant a break of the
Constitution that could be politically, institutionally and procedurally avoided by
the central Parliament. A second attempt, with the same aim, came in 2008 through
a proposal to hold a referendum in the Basque country, following Quebec precedent.
This time, the Constitutional Court was in charge of giving the reasons of legality
and legitimacy to abort the attempt.
a The Ibarrexte Plan and the Spanish Parliament: Constitutional Politics and
Limits of the Constitution
On the 25 of October of 2003, a proposal for a new Political Statute for the Com-
munity of Euskadi was ocially presented to the regional parliament. The idea and
the text of the Statute was an initiative lead by the Basque Nationalist Party (PNV)
and its president, Juan Jos Ibarretxe, who at the time was Lehendakari, president of
the Basque Community. Ibarretxe had already announced to the Basque parliament
in 2001 the project to make a new design of the relationship between the Basque
Country and the Spanish State. The nationalist claims in the Basque Country were
not new, and the opposition of the Spanish Government and of Spains two main
parties, the Popular Party (PP) and Socialist Party (PSOE) was not unexpected.
But, although neither the proposal, nor the nal refusal was surprising, the initiative
represented a rst real invitation to discuss the issue of independence in a constitu-
tional and political context.12
Catalonia, Andalusia, Castile-La Mancha, Valencia, Aragn and Balearic Islands are
those Communities having successfully reformed their Statutes of Autonomy. Reform
of Statutes for Castile-Len and Extremadura are still in process. The openness of the
Autonomies in Spanish constitutional system is explained in Jaume Vernet i Llobet, El
Estado Autonmico y los retos de un modelo abierto, Anuario jurdico de La Rioja
(): .
About Ibarretxe proposal, Keating and Bray consider that it was, primarily of symbolic,
rather than practical, signicance, given the opposition to the proposal by Spains cen-
The proposal was bold indeed. The central idea involved the creation of a new
status of a freely-associated Community for the Basque country, something that
was not recognised in the Spanish Constitution. The Ibarretxe Plan (IP), as it was
named, talked in its preamble of the Basque people, or Euskal Herria, as a people
with self-identity among the peoples of Europe; a people with a right to self-deter-
mination, following the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights; and a people
settled in territories which are politically subject to two dierent States Spain and
France and, the Spanish part, divided in two dierent Autonomous Communities
Navarra and Euskadi. The plan proposed a new political situation of free associa-
tion for the three provinces of Euskadi: Alava, Guipuzcoa and Vizcaya. But it also
included the possibility to integrate Navarra and the territories of the French Basque
country, always with the consent of the municipalities and inhabitants of those ter-
ritories, as well as the approval of the Basque parliament and the Cortes Generales
(Article 2, IP).13
So there was a mixed concept of the Basque people in Ibarretxe Plan: part based
on culture, geography and history and, in that way, in self-determination as recog-
nised in international law; part based on a democratic choice presented as radically
dierent from that of the Spanish Constitution. The basic decisions about the rela-
tionship between the state and the Basque Country should be made through refer-
enda of the Basque citizens, not through the processes established in the Constitu-
tion and the Statute of Gernika (Article 13, IP). The proposal also empowered the
Basque institutions to act in spheres of competence that the Spanish Constitution
reserves to the State. For instance, an express authorisation of the Basque institu-
tions would be required if the Spanish Government wanted to sign an international
treaty that could aect competences of the Basque Statute (Article 68.1, IP). Acierno
and Baquero remark that although it looked, like a proposal for a new constitu-
tion, for the Basque country, the term constitution, was, carefully avoided, in
reference to Euskadi, and the word state, was, only used in reference to Spain.14
That was a paradox, because the text of the proposal made continuous references to
the Spanish Constitution, as if the context of transition to a free-associated com-
munity could be deduced from the Fundamental Law articles. The King of Spain
tral government. It nonetheless created a new political dynamic in the region, by forcing
not only politicians but also ordinary citizens to take a position on a series of issues re-
lating to nationality, sovereignty and democratic representation. Michael Keating and
Zoe Bray, Renegotiating Sovereignty: Basque Nationalism and the rise and fall of the
Ibarretxe Plan, Ethnopolitics : (): .
The idea of people in the proposal for the Political Statute and, in particular, the refer-
ences to Navarra and the French Basque Country have been criticized as non-demo-
cratic and illogical in Alberto Prez Calvo, El plan Ibarretxe y su grave dcit democ-
rtico de partida, Revista de Estudios Polticos (Nueva poca) (): .
Silvia Acierno and Julio Baquero Cruz, The Order of the Spanish Constitutional Court
on the Proposal to Convert the Basque Country into a freely Associated Community:
Keeping Hands o Constitutional Politics, International Journal of Constitutional Law
: (): .
would remain the head of the state, as from the interpretation of Article 25, IP,
which empowered the King to make the appointment of the Lehendakari. Constitu-
tional rights were granted to Basques through the recognition made in Article 11, IP,
which linked with the fundamental rights recognised in the Chapter I of the Span-
ish Constitution. There would be a new and specic section in the Spanish Consti-
tutional Court to review cases involving Basque laws or conicts between the state
and Basque community institutions (Article 16, IP). Article 14, IP said that the State
could not make use of the powers given by Article 155 of the Spanish Constitution
to compel the Basque community meet obligations under the Constitution. Article
12 of the proposal established an interpretation of Additional Provision Number
1 of the Constitution which diered from that made by the Constitutional Court:
instead of considering that the historic rights of the territories were a consequence
of a constitutional recognition, Article 12, IP understood that those rights were at
the disposal of Basque people of whom the proposal spoke. It also considered that
the decision to change the model of relationship with the state, becoming a free-
associated community, was just an updating of the mentioned rights in the frame
of the Constitution.
The plan could be called, ambiguous. It overrode the Spanish Fundamental Law,
formal and materially though not procedurally, but it presented itself as a legal con-
sequence of that very same Constitution. The Ibarretxe plan was sent to the Basque
parliament as a proposal for the amendment of the Statute of Gernika and, as soon
as it was received and accepted by the regional parliament, the Spanish government
brought an action before the Constitutional Court. Through that action, the central
government wanted to stop the legal process and to avoid the political debate. The
text had not been approved yet, not even by the Basque parliament, so: was there
really a violation of the Spanish Constitution? It seemed that it could had been so if
the proposal had been accepted rst by the Basque parliament, second by the Cortes
Generales and, in a third place, by the Basques in a referendum. It would have meant
an amendment of the Constitution without using the constitutional procedures. The
decision made by the Constitutional Court, by Order 135/2004 of the 20th April
2004, concluded in accordance: as long as there was only a preliminary act of the
Basque parliament, instead of a denitive act or norm that were to become part of
the legal order, there was no breach of the Constitution yet to reject or declare void.
It is important to pay attention to the fact that there was no unanimity in the Consti-
tutional Court about such Order. There were dissenting opinions from some judges,
saying that the proposal should have been declared contrary to the Constitution.15
If that had happened, and the Constitutional Court had stopped the proceedings,
the political debate would not have taken place. But it did, and it was the Congress
of Deputies that nally rejected the proposal on 1 February 2005. The main Span-
ish parties, Popular and Socialist, voted against Ibarretxe Plan, while most of the
regional nationalist parties, not only the Basque ones, voted in favour of. That was
the end of Ibarretxe Plan, as such, but not the end of Ibarretxes plans to spark o
The order can be found in: http://www.tribunalconstitucional.es/es/jurisprudencia/Pa-

ginas/Autos.aspx. Accessed November . For an analysis of the Order see ibid.
controversy about the issue of Basque independence. A second attempt, also dressed
in legal clothes, came three years later.
b The Subsequent Attempt: The Referendum that Was Never Held

After the defeat in the Spanish Parliament, Ibarretxe called for elections in the
Basque country. He had the idea that a renovation of the Basque parliament could
mean a stronger position for his political project. But the results of the elections held
the 17 April 2005 did not produce the support Ibarretxe and the Basque Nationalist
Party expected. The candidature of the Basque Nationalist Party obtained a major-
ity, but it lost representatives in relation to the former elections, while, conversely,
the Socialist Party and the radical nationalists gained. Notwithstanding the draw-
backs, the Lehendakari initiated an alternative strategy, taking into account the de-
termination of the Spanish Government, at the head of which was socialist Jos Luis
Rodrguez Zapatero, elected only one year before, to end with the terrorism of ETA.
The guidelines of such a plan included negotiations with the Spanish Government:
the PNV could mediate in the conict if the Government agreed in reconsidering
the situation of Basque autonomy.
Negotiations did not succeed and, in May 2008, the Basque government began
to prepare a proposal for the Basque parliament. It concerned a call for a popular
consultation within the Basque Country to ask the citizens about a specic vision
of the future of Euskadi. The legal design of the strategy was based on legislative ac-
tion by the regional parliament: a statue authorising the Lehendakari to call for the
consultation should be passed. The use of the word consultation instead of the word
referendum was a legal trick. The Spanish Constitution establishes that the autho-
rization of public consultations through the holding of referenda was a competence
exclusive to the state in Article 149.1.32, and gives the faculties to propose and autho-
rize referenda to the President of the government and to the Congress of Deputies,
respectively in Article 92. It is relevant to remember that in December 2003, while
the Ibarrexte Plan was being discussed, the Spanish parliament, with a majority of
the Popular Party in that moment, had passed a statute which declared that the act
of calling for a referendum out of the legal and constitutional rules should be pun-
ishable with three to ve years prison. Although the articles of the criminal code
that introduced such punishments were abolished in June 2005, when the Socialist
Party replaced the Popular Party as the Spanish government, the fact remained that
the word referendum was controversial. The background of the consultation pro-
posed by Ibarretxe in 2008 had such a strong political signicance that the wording
could not mask the reality.
Two questions were to be asked to the Basque citizens the 25 October 2005. The
rst one: would you agree to support a process of ending violence through dialogue,
if the ETA previously showed an unmistakable determination to end violence once
and forever? The second one: would you agree that the Basque parties, without ex-
clusions, initiated a process of negotiation in order to reach a Democratic Agreement
on the exercise of the Basque peoples right to decide, an Agreement which should
be subjected to referendum by the end of 2010? The Basque Parliament Law 9/2008:
convening and regulating a popular consultation for the purpose of ascertaining

public opinion in autonomous community of the Basque Country on commencing
negotiations for achieving peace and political normalisation, was approved the 27
June and published the 15 July. The very same day of its publication, which is the very
rst day of the term of three months available to bring a law before the Constitu-
tional Court,16 the Spanish government appealed against Law 9/2008, considering it
unconstitutional on three main points. First, it was contrary to the exclusivity of the
state competence to call for a referendum, in the sense already explained. Second,
the legislative procedure observed in the drafting of the law had been inadequate,
so there was a procedural unconstitutionality. Third, the Law infringed Articles 1.2
and 2 of the Spanish Constitution: for acknowledging a new sovereign subject aside
from the Spanish people, and without having mediated a previous constitutional de-
cision which may only be articulated through the constitutional reform established
in Article 168.17
Unlike the former appeal against the Ibarretxe Plan, this time the law had been
already enacted, so the Court had no formal reason to refuse to make a judgment on
the constitutionality of the attempt to open the way to an independence process for
the Basque country. The advantage for the Court was that the issues of unconstitu-
tionality had already been pointed out by the government, so the Court did not need
to make a judgment on the constitutionality of a project of independence but on the
constitutionality of a concrete law. That helped the Court to make a direct and orga-
nized legal reasoning, beginning with the question of the competence and following
with the question of sovereignty. The procedural issue concerned the claim that the
proceeding followed in the Basque Parliament did not full the conditions required
by the Regulation of the Basque Parliament. Though accepted by the Court, it is only
of relevance for this study if we wonder why the Court did, for the rst time, de-
clare a law unconstitutional because of a procedural failure. Was the Court trying to
make its judgment more convincing? It should have been enough, as Gmez Corona
explains, with the other two claims of the Spanish Government, as they had been
answered by the Court, to leave the question solved. As one author noted, that it was
unnecessary for the Court to use the procedural argument, as the law had already
been found unconstitutional by the other two substantive reasons.18
Article . of the Constitution establishes that appeals of unconstitutionality can be

lodged by the President of the Government, the Ombudsman, fty Deputies, fty Sena-
tors, the executive corporate bodies of the Autonomous Communities and, when ap-
plicable, their Assemblies. It is the Organic Law of the Constitutional Court (Organic
Law / of October), in Article it establishes the three months term to lodge the
unconstitutionality appeal, departing from the day of publication which, in the Spanish
system, is deemed the nal feature of the legislative process (Article ).
Spanish Constitutional Court Judgment / of September , Boletn Ocial
del Estado No. , October : .
Gmez Corona makes an in-depth study of this point of the Constitutional Courts
Judgment. She explains that this has been the rst time that the Court has deduced the
unconstitutionality of a procedural failure. However, the Court had declared in former
judgments that constitutional and parliamentary norms which regulate the creation of
i Why the Consultation Could Not Be Authorised by a Law of the Basque

Parliament
Was the Basque Parliament empowered with any competence which could have
saved the constitutionality of the Law 9/2008? The Basque Government and the
Basque Parliament argued before the Court that considering Article 9 of the Statute
of Gernika concerning the responsibility of Basque public powers to promote civic
participation in the political, economic, cultural and social life of the Community
and taking into account the non-binding nature of the consultation projected,
the regional parliament was not acting within exclusive competence of the state
to call for referenda. Notwithstanding the attempts to justify Law 9/2008 at that
point, the Constitutional Court stated that, the consultation of the contested law
is constitutionally a referendum. As a consequence, its, convocation cannot make
use of generic implicit powers, derived from Article 9 of the Statute of Gernika as:
these enter into conict with jurisdictions expressly attributed to another entity, as
occurs in the present case with that attributed to the State19. For the Court, the con-
sultation was a referendum because it was to be made, on an issue of a manifestly
political nature, among, citizens of the Basque Country with the right to vote, that is:
the electoral body of the Autonomous Community of the Basque Country. For the
Court it was an attempt to learn the wishes of a part of the Spanish people through
the wishes of the electoral body of the Autonomous Community: the subject who
ordinarily manifests his opinion through the procedure governed by the Law 5/1990
of 15 June for elections to the Basque Parliament. Also the fact that the consulta-
tion was projected to be held, by means of an electoral procedure provided with
guarantees of the electoral processes, meant, in the view of the Court, that: the
consultation is a referendum. The circumstance that it should not be legally binding
laws have an instrumental nature with respect to the democratic legitimacy and plu-
ralism, as values of the system, and that a failure to observe the precepts regulating
the legislative procedure could make a law unconstitutional when such a failure meant
an alteration, in a substantial manner, of the formation of the will of the Chambers.
Esperanza Gmez Corona, La alteracin en el proceso de formacin de la voluntad de
las cmaras como elemento determinante de la inconstitucionalidad de la ley: la STC
/ de de septiembre, Revista General de Derecho Constitucional (): .
Accessed January . www.iustel.com. Following the Spanish Governments rea-
soning, the procedure of a single reading, at the instigation of the autonomous govern-
ment and without the need for prior authorisation of the Chamber, was not accurate.
The Constitutional Court accepted that the Law was unconstitutional because of that
reason. The Court hold that a, substantial alteration has occurred in the present case,
through an, infringement of the Regulation on the Basque Parliament, and repeated
that the: passing of the contested law has been imposed on the Chamber through a
procedure in which the possibilities of the participation of minorities in the process
of drafting the regulation would be notably restricted. Spanish Constitutional Court
Judgment / of September , paragraph .
Spanish Constitutional Court Judgment / of September , paragraph .
is completely irrelevant, as it is clear that the referendum is not dened in respect of

other popular consultations by the binding nature of its results.20
The conict surrounding the rst of the unconstitutionality claims, lack of com-
petence, was easily decided almost exclusively in formal terms. The question that
could remain uncertain is whether a consultation of that kind could be made if a
Statue of Autonomy recognised the competence of a Community to call for popular
consultations. In fact, Article 122 of the current Catalonian Statute of Autonomy
gives the Catalonian government the possibility of calling for popular consultations.
The dierence is that such article also recognises that the possibility of popular con-
sultations has its limits in Article 149.1.32 of the Spanish Constitution and, as inter-
preted by the Constitutional Court in its recent ruling of 28 June 2010, should exclude
referenda.21 If we follow the Constitutional Court decision, a consultation following
the requirements of an electoral procedure, such as planned by Law 9/2008 of the
Basque parliament, is a referendum. Once more, we see that the formal answer was
enough to make the Law 9/2008, or any other of the kind, unconstitutional. But still
there was a second claim of unconstitutionality to be answered: whether the Basque
people could be deemed holder of a right to decide, regardless the sovereignty of the
Spanish People, as a whole, recognised in the Spanish Constitution.
ii Why the Consultation Could Not Be Held without a Constitutional

Reform
As we have already explained, the consultation pretended to open negotiations to
dene the basis for a new form of relationship between both, the Basque Country
and the Spanish State, as if the former was distinguished by a right of the Basque
people to decide. For the Constitutional Court, the issue unquestionably aected,
the constitutional order and also the basis of the constitutional system, because, it
assumes reconsideration of the identity and unity of the sovereign subject or, at the
very least, of the relation which only its wishes can establish between the State and
the Autonomous Communities.22 As the Spanish constitutional system is based on
a rigid Constitution, the eects of accepting such point of departure would mean
a reform of the Constitution out of the framework of reform procedures that the
Spanish Constitutional Court Judgment / of September , paragrah . It

is so that the Spanish Constitution establishes the possibility of both, binding (Articles
, , ) and non-binding referenda (Article ).
See Spanish Constitutional Court Judgment /, June , Boletn Ocial del
Estado No. of July , , legal reasoning number . Notwithstanding the inter-
pretation given by the Court on Article of the Statute of Autonomy of Catalonia, the
autonomous parliament there has already issued the Law /, March, entitled as
Law about Popular Consultations by Referendum. Its contradiction of the constitutional
interpretation made by the Constitutional Court will not be unproblematic. See Esther
Martn, Comentari a la STC sobre lEstatut. Competncia en matria de consultes pop-
ulars (Article ), Revista catalana de dret pblic, Especial Sentncia sobre lEstatut,
(). Accessed August . http://www.gencat.net/aepc_revistadret.
Spanish Constitutional Court Judgment /, September , paragraph .
fundamental law establishes. There is nothing more harmful to the system of a rigid
Constitution than reform outside of its procedures.
Following the Courts reasoning, when Law 9/2008 speaks of the Basque people
as a holder of a right to decide equivalent to that of the Spanish people, it is opening
a process of reconsideration of the constituted order. The Spanish constitutional sys-
tem is based on the sovereignty of a unique people, the Spanish one (Article 1.2) and
on the unity of the Spanish nation (Article 2). The question that was being proposed
for the consultation of the citizens of the Autonomous Community of the Basque
Country would aect all the Spanish citizens. Therefore, according to the Court, it
may only be subject to popular consultation via a constitutional review referendum.
It is a matter reserved in its institutional treatment to the procedure of Article 168
SC. What is of most interest, is that, as the Court reminds, provided that it is not
defended through an activity which contravenes the democratic principles or fun-
damental rights there are no material restrictions to constitutional revision.23 So we
can think that, as long as respect for the procedures established in Article 168 of the
Constitution were assured, negotiation for a change of constitutional basis would be
allowed. What the Court does not outline is how hard Article 168 makes it to change
some of the constitutional norms.24
Therefore, the Constitutional Court judgment, though not unpredictable, reject-
ed the second independence attempt planned by Ibarretxe. Unlike the decision on
the Ibarretxe Plan, this judgment was unanimously supported by the twelve justices.
It was delivered on the 11 September 2008, knowing that the consultation was pre-
tended to be held on the 25 October. Obviously, it was never held.
4 Some Conclusions
When we began this chapter, we wondered if the similarities between Kosovo and
the Basque country were so obvious as to inuence the Spanish governments deci-
sion not to recognise Kosovo, even though most of EU member states had recognised
Kosovo as independent State. Before knowing the evolution of the Basque National-
ist Partys strategy, someone could think that the idea of holding a referendum in the
Basque country came as a consequence of Kosovos independence, because Ibarretxe
launched the project in June 2008, just after Kosovos Declaration of Independence
in February of the same year. But the truth is that the idea of a referendum comes
from earlier, as can be deduced from considerations on the Ibarretxe Plan.
Spanish Constitutional Court Judgment / of September , paragraph .

Article of the Spanish Constitution establishes that, for a reform of certain parts
of the Constitution, the principle of the proposed reform should be approved by a two-
thirds majority of the members of each Chamber, and the Cortes Generales should im-
mediately be dissolved. Then, the new Chambers elected thereupon would have to ratify
the decision and proceed to examine the new constitutional text, which would have
to be passed by a two-thirds majority of the members of each House. Finally, once the
amendment had been passed by the Cortes Generales, it should be submitted to ratica-
tion by referendum.
Up to the present, the steps taken towards a greater degree of autonomy for the
Basque country have tried to use the concepts of constitutional legitimacy, closer
to the constitutional hermeneutics of the Supreme Court of Canada in the Quebec
judgment, than to the ideas of self-determination under international law. Even if
the proposals clearly broke the present Spanish constitutional framework, there has
never been real unilateral action. The Basque Parliament accepted the Constitution-
al Court judgment on the referendum issue. The referendum was not held and that
was the end of it. The debate has been one about constitutional sovereignty and the
limits of the right to autonomy within the territorial design of the Spanish State. The
events and the development of this process conrm a commitment of the Basque
nationalists to constitutional form. That commitment forced them to try to achieve
a stronger autonomy either by constitutional reform or by constitutional reinterpre-
tation: in the Ibarretxe Plan. Subsequently, when those attempts were unsuccessful,
the nationalist strategy turned to the recourse of the constituent power of the people
as such: in the form of the referendum that was never held.25
Would the attitude of the Basque nationalists change if Spain recognised Kosovo
as an independent State? We can only speculate on this matter. The Spanish Gov-
ernment held to the argument that Kosovos independence was contrary to interna-
tional law. Now the ICJ Advisory Opinion of 22 July 2010 has given a new perspective
on that assertion, there is a dierent consideration of international legitimacy to be
considered by the Spanish government. Indirectly, there are also new suggestions
about the constitutional legality, or neutrality, of a declaration of independence pro-
claimed, by representatives of the people, with the support that the use of, we the
people, gives. What will the Spanish government do? Will this mean a change in
the strategies of the Basque Nationalist Party? Will this even trigger a step toward
unilateral actions in the Basque country or even in Catalonia? Many questions must
remain still unanswered. Only time will tell.
The political and democratic map of the Basque country within the Spanish state
after the Constitution of 1978 is quite dierent from that of Kosovo after the wars
in the Balkans, the United Nations Interim Administration since 1999, the Security
Council Resolution 1244, and, nally, the ICJ Advisory Opinion. A part of the debate
on Kosovo precedent was: whether a right conceived for colonial peoples can be ap-
plied to so-called national peoples. While the former are recognised as having this
right external self-determination the latter have only been recognised as having
These ideas are explained by Stephen Tierney: Attempts to alter this course using the
existing institutional processes can be made by sub-state national societies in two ways:
either by formal constitutional amendment or by seeking reinterpretation of the con-
stitution, especially by a constitutional court. When such amendatory and interpreta-
tional strategies fail to achieve the desired outcome, sub-state actor may feel they have
no further recourse within formal constitutional structures. In such exceptional situa-
tions they contend that their only recourse is to activate sub-state constituent power for
the purpose of kick-starting meaningful constitutional dialogue. Stephen Tierney, We
the Peoples: Constituent Power and Constitutionalism in Plurinational States, in The
Paradox of Constitutionalism: Constituent Power and Constitutional Form, eds. Martin
Loughlin and Neil Walker (Oxford: Oxford University Press, ), -, -.
the right to autonomy, or internal self-determination, which keeps them from being
persecuted or excluded from the government.26 But now, the debate has changed
because a national people, that of Kosovo, not being in a colonial situation has ex-
ercised a right to self-determination that goes beyond internal self-determination.
Notwithstanding these developments, the Kosovo precedent has been discussed as
a case within the eld of the international law of self-determination, due to the post-
conict situation and the UNMIK interim administration. No word has been said
about the constitutional dimension of the Declaration of Independence, at least, by
the ICJ. The Court neither examined the issue of the statehood for Kosovo, nor that
of the validity and eects of the recognition by other States. The Court just demon-
strated that general international law contains no applicable prohibition of declara-
tions of independence, which is not the same than the allowance of such unilateral
acts, and found that the Security Council Resolution 1244 had not been violated
by Kosovo Declaration of Independence. If an Autonomous Community within the
Spanish state declared unilaterally its independence, breaking the constitutional
framework: would be it be considered as a non-prohibited act under international
law? Yes or no, it would depend on the arguments chosen for interpretation or, at
least, the answer is not easily deduced with the hermeneutics of the ICJ regarding
Kosovo.27 In spite of the hypothesis that could be formulated from international law,
the constitutional path is, more or less, clear: a dierent status for the Basque Coun-
try could only be achieved through prior constitutional reform and a referendum
could only be held if the Spanish state authorised it.
Still, through elections and the building of the Basque community, the territory
has achieved a high degree of autonomy within the state, its historic rights have been
included in the Spanish Constitution, and civic participation is guaranteed for the
Basques not only in Basque institutions but also in the central state: the results of
the elections for the Congress of Deputies and for the Senate since 1978 show that
the representation of nationalists parties is constant. It is true that since 2002 some
radical nationalist parties have been declared illegal and suspended by the Spanish
Romualdo Bermejo Garca and Cesreo Gutirrez Espada, Kosovos Independence

from the Perspective of the Right to Free Determination, Real Instituto Elcano: Work-
ing Paper /, April . Accessed December . http://www.realinstitutoel-
cano.org/wps/portal/rielcano/MisionesDePaz/Kosovo/Publicaciones.
This conclusion would support Fleiners opinion: If we look at the way the interna-
tional community treated the problem of self-determination, there is no clear criteria
for cases, where self-determination is granted and where not. It seems more or less
that this depends largely on the question which nation claims self-determination and
in which cases the acceptance of the right ts the national interests of the big powers.
However, as long as self determination is only a political issue, it will remain one of the
key reasons in international conicts and struggles. Thomas Fleiner, State-Nation-
Nationalities-Minorities. New nation State concept for a European Constitution, in
Towards a European Constitution: Europe and Federal Experiences, eds. Thomas Flein-
er and Nicolas Schimitt (Fribourg: Publications de lInstitut du Fdralisme Fribourg
Suisse, ), .
Supreme Court because of their support to the ETA and the terrorism.28 This has
been troublesome for the Spanish state, as those declarations were at the very limits
of politics, fundamental rights and freedom, the constitutional basis of the state and
the rule of law. Notwithstanding those controversies, the European Court of Hu-
man Rights recently backed up the suspension of Batasuna in 2003, giving support
to the Spanish Law 6/2002 of Political Parties and to the arguments considering that
the suspensions were not acts against nationalist ideals, but against undemocratic
methods.29
In other words, the facts show that the situation in the Basque country after the
defeat of the Ibarretxe Plan and of the referendum plan has changed, but not in the
direction the nationalists would have desired. The 1 March 2009, elections to the
Basque Parliament resulted, for the rst time since 1978, in the Basque Nationalist
Party being left out of the Basque government. An interesting situation has led to a
government presided by the socialist Patxi Lpez, as new Lehendakari, with the sup-
port of the Popular Party: the two great political rivals in Spanish politics have been
able to make an agreement to change the political nature of Basque country rule.
What comes next is still to be seen, as the nationalists have unwillingly accepted
the coalition Government, expressing their upset, unease, and complaining for what
they consider a manipulation of the will of the Basque people, as the result of 2009
elections gave them a simple majority.
The Constitutional Court said in its judgment on the referendum issue that the
way to alter the system of the relationship between the state and the autonomies is
a constitutional reform. Although it is not impossible, it would require a solid con-
sensus of the dierent parties, not only the nationalist but also the non-nationalist,
and a hard process of decisions, negotiations, elections to the Spanish parliament
and referendum of the whole of the Spanish electorate to attain it. As long as, fol-
lowing the Constitution, the Spanish people is said to be the sovereign, a decision on
the Basque countrys status is a decision for all the Spaniards. It remains to be seen
whether Kosovo will have any impact on this view.
The Organic Law / of June of Political Parties empowered the Supreme Court
to declare illegal and suspend a party that would be acting against democratic values
or supporting terrorism. Until that time, the Law has been applied to suspend several
political parties and electoral unions based on nationalist ideals.
European Court of Human Rights, Herri Batasuma and Batasuma v. Spain, Judgment
( June ). The Organic Law / had previously been contested before the Con-
stitutional Court by the Basque Government presided by Ibarretxe in . The Basque
Government claimed that there were unjustied restrictions of fundamental freedoms
of association and rights to democratic participation caused by Organic Law /, but
the Constitutional Court ruled that the Organic Law was constitutional and that it was
not contrary to ideologies, but to undemocratic activities. Spanish Constitutional Court
/ of March Boletn Ocial del Estado No. , May . An analysis of the
judgment of the ECHR can be found in Mercedes Iglesias Brez, La ley de partidos
polticos y el test de convencionalidad europeo. El dilogo entre el Tribunal Constitu-
cional y el Tribunal Europeo de Derechos Humanos en torno a la ilegalizacin de Herri
Batasuna y Batasuna, Teora y Realidad Constitucional, No. (): -.
Index
Aaland/land Islands 91, 150, 157 264, 267, 270-272, 275, 279-280-289, 293,
Abbas, Mahmoud, 372 296, 301-302, 316-317, 319-320, 327-329,
Abkhazia 44, 51, 67, 200, 363, 373, 393, 396- 340, 349, 353, 417, 423
398, 400-404, 406-407, 413-416, 418, 421- Opinion No. 1 117, 166, 264-266, 280-282,
422, 426 284, 316, 349
Abyssinia 70 Opinion No. 2 117, 280-281, 284-288, 296,
Aceh 361-362, 371, 385-386 301, 316-317, 327
Afghanistan 40, 129 Opinion No. 3 280-281, 301, 327
Agani, Fehmi, 358 Opinion No. 5 118
Aggression 235 Opinion No. 6 118
Ahtisaari, Martti, 37, 38, 39, 40, 41, 49, 79, Opinion No. 7 118
102, 103, 125-127, 129, 150-151, 182, 349, Opinion No. 8 166
363, 366-368, 371, 384, 407 Opinion No. 11 166, 287
Albania 3, 4, 7, 8, 10, 16, 40, 87, 91, 129, 145, Badinter, Robert, 11, 117, 264
354-355 Balkan War 1913 112
Albanian diaspora 14, 35, 36, 121 Ban Ki-moon 127
Albanian irredentism 29, 367-368 Bangladesh 20, 176, 386, 391-392, 408, 418
Albanian language 4, 112 Bantustans 65, 72
Albanian nationalism 7, 8, 13, 16, 28, 29, Basque Country 227, 429-444
111-112 Law 5/1999 439
Albright, Madeline, 123, 264, 365 Law 9/2008 427-438
Amnesty International 361-362 Statute of Guernika 1979 431, 434-436, 439
Annan, Ko, 124 Article 9 439
Apartheid 71, 72, 74 Basque Nationalist Party 431, 434, 437, 444
Arechaga, Judge, 339 Battle of Kosovo Polje 5, 268
Argentina 20, 296, 411 Belarus 20, 21
Atlantic Charter 1941 230 Belgium 319
Australia 134 Benchmarks 31, 34, 36
Austria 355 Biafra 409
Autonomy, right to, 90-91, 185-186, 252, 277- Bismarck, Otto von, 112
278, 286, 297, 355-356, 429, 442-443 Borgen, Christopher, 422
Azerbaijan 426 Bosnia-Herzegovina 5, 10, 11, 13, 14, 16, 21,
Azores 60 41, 96, 116-118, 158, 166, 220, 253, 256, 263-
267, 275-276, 278, 281, 284-285, 316-317,
B 369, 379-380, 393, 417
Badinter Arbitration Commission 10, 11, 12, Brazil 20
13, 78-79, 87, 89, 96, 124, 165-166, 253, 256, Brcko Corridor Arbitration 1997 338-340
446 Index
Britain 16, 19, 37, 40, 44, 103, 129, 137, 254, Contact Group 16, 17, 123-124, 127, 254-256,
355-356, 371-373, 383-384, 407 258-259, 261-263, 348, 371
House of Commons Foreign Aairs Select Guiding Principles for the Settlement of the
Committee 276 Status of Kosovo 37-38, 126-127
British Togoland 59 Statement 9 March 1998 254
Brownlie, Ian, 61, 244 Statement 12 June 1998 261
Burke, Edmund, 27 Cook, Robin, 264
Burkina Faso/Mali Frontier Dis- Copenhagen Document 1990 278
pute 1986 12, 283, 325-326 Coppieters, Bruno, 407-408
Costa Rica 40, 129
C Council of Europe
Cameroon/Nigeria Boundary Dispute Venice Commission 38, 299
2002 340 Framework Convention for the Protection
Canada 134 of National Minorities 1995 278, 285-287
Supreme Court 43, 91-92, 152, 154-157, 164, Crawford, James, 357, 361
174, 297-298, 332, 416, 418, 425, 429, 442 Cree 332
Canado Trindade, Judge, 205, 381 Croatia 5, 9, 10, 11, 13, 14, 96, 116-118, 159,
Caplan, Richard, 167 166-167, 265, 281-282, 285, 287, 316-317,
Carrington, Lord, 117, 280-281, 284, 353 329-330, 349-351, 410
Cassese, Antonio, 62, 355 Cuba 20
Catalonia 429, 442 ubrilovi, Vasa, 113-114
Statute of Autonomy 434 Cyprus 46, 296, 369-370, 374, 411, 426
Article 122 440 Czechoslovakia 165, 185
Chechnya 363, 406, 409, 414
China 19, 20, 21, 74, 377, 391-393, 405, 411, D
416, 426 Dalai Lama 392
Chinkin, Christine, 366 Dayton Accords 1995 14, 16, 119-121, 124, 158,
Clemenceau, Georges, 210 258, 266-267, 338-339
Clinton, Bill, 365 De facto separation of territory 97
Cold War 219-221 Declaration on Friendly Relations, GA Res.
Collective state creation 164, 174, 177 2625 (XXV) 1970 12, 57-60, 64, 71, 90,
Commonwealth of Independent States 229-230, 232-233, 237-238, 275, 277, 297-
Alma Alta Declaration 1991 328 298, 324
Minsk Declaration 1991 328 Principle 1 45
Communities 32, 187-188 Principle 5 45, 57
Comprehensive Proposal for the Principle 5, Paragraph 7/Saving/Safeguard
Kosovo Status Settlement and Clause 91, 94, 155-156, 205, 271, 353
Recommendations/Ahtisaari Plan Declaration on Colonial Independence, GA
2007 38, 39, 40, 41, 68, 79, 81, 95, 99, 102- Res. 1514
103, 128, 150-151, 158, 173, 175, 182, 196-197, (XV) 1960 58, 60, 63, 90, 225, 231
209, 331, 349, 368-371 Principle 2 325
Conference on Yugoslavia 10, 280 Principle 5 63
Draft Convention 316, 327 Principle 6 325
Congo 96 Declaration on the Rights of Indigenous Peo-
Congress of Berlin 1878 111-112, 164 ples, GA Res. 61/295, 2007 190-191
Constitutional Framework for Provisional Decolonisation 49
Self-Government in Kosovo 2001 26, 32, Democratic League of Kosova (LDK) 14, 15,
131, 149, 152-154, 195, 215, 223, 331, 341 31, 32, 66, 121, 146, 255, 270
Article 1(2) 318 Democratic Party of Kosovo (PDK) 31, 32,
Chapter 4 195 66
Index 447
Denmark 44, 296 European Union Special Representative for

Deutsche Continental Gas Gesellschaft v. Kosovo 41
Poland 1929 418 Ex aequo et bono 336
Diasporas (see also Albanian diaspora) 220 Ex injuria non oritur 357-358, 381
Doebbler, Curtis, 425
Draft Comprehensive Convention on Inter- F
national Falk, Richard, 396
Terrorism 216 Falkland Islands 227
Drnovsek-Racan (draft) Agreement 330 Feith, Pieter, 41
Dominium 94 Field of the Blackbirds 4, 5
First Gulf War 98, 100, 234
E Fischer, Joschka, 365
Eagleburger, Lawrence, 120 Fitzmaurice, Judge, 100, 104
East Jerusalem 71 Foster, Caroline, 289
East Timor 24, 50, 77, 96, 162, 165, 171-173, France 16, 37, 40, 129, 137, 254, 355, 430, 435
221, 383-386, 410 Franck, Thomas, 320, 408
East Timor (Portugal v. Australia) 1995 60, Free association 59
162, 171 Fried, Daniel, 362-363, 367, 387
Eastern Slavonia 14, 410
Eective control 90, 94-99, 104, 106-107, G
157-159 G8 134
Egypt 129 Gabon 20
Eide, Kai, 36, 37, 125 Gambia 20
Eide Report 2004 36, 37 Gamsakhurdia, Zviad, 397-398, 413
Electric Power Industry of Serbia 312 Garashanin, Ilia, 111
Emerson, Rupert, 387 Geci, Halit, 121
Equity 336, 338-339 Gelbard, Robert, 121
Eritrea 165 General Assembly Resolution 181 (II)
ETA 429, 437, 444 1947 100
EULEX 40, 41, 42, 68, 81, 138, 304, 308-310, General Assembly Resolution 1541 (XV)
313, 391 1960 58, 60
European Court of Human Rights 444 General Assembly Resolution 63/3 2008 42,
European Parliament 139 56, 81-85, 129, 152, 222, 292, 345-346, 378,
European Union/European Community 10, 388, 424-425
17, 18, 39, 40, 40-42, 57, 133-134, 137-139, General Assembly Resolution 64/298
151, 165-171, 181, 196, 252-253, 347, 353, 370, 2010 198-199
391, 402, 404, 407, 416-417, 420, 427, 433, Geneva Conventions 1949
441 Additional Protocol 1 1977 237-239
Arbitration Commission (see Badinter Article 1(4) 237-238
Commission) Additional Protocol 2 1977 237, 239-241
Acqui communitaire 139 Article 1(1) 239
Declaration on Guidelines on Recognition Article 1(2) 239
1991 11, 267, 281-282, 317, 327, 328, 417 Common Article 2 234, 237, 239
Declaration on Yugoslavia 1991 280-281, Common Article 3 237, 239, 241
317, 327 Georgia 395-426
Involvement in UNMIK 25 Constitution 1923 397
Proposed Kosovo membership 109, 134, Geremek, Bronislav, 260
137-139 German-Polish Arbitral Tribunal 418
Special Tracking Mechanism 138 Germany 16, 37, 40, 137, 254, 300, 346-347,
364-365
448 Index
Gheg 4 Imperium 94, 106

Gill, Terry, 354 Implied powers 99, 103
Gmez Corona, Esperanza, 439 Independent International Fact-Finding Mis-
Gonzalez, Felipe, 255 sion on the Conict in Georgia 404
Good government 27, 49 India 20, 21, 227, 392
Gordon, Philip, 426 Intervention in East Pakistan 21, 386-387,
Greece 129, 134 392, 408, 418
Greenpeace 234 Indigenous Peoples 183, 185, 191, 201, 212
Guatemala 336 Indonesia 171-173, 361-362, 384-386
International Civilian Oce 41
H International Civilian Representative 41
Hallstein Doctrine 74 International Commission of Enquiry
Hannum, Hurst, 252, 257, 277, 396 1914 112
Helsinki Final Act 1975 11, 12, 18, 23, 274, 412 International Committee of the Red
Principle IV 45, 324 Cross 237-240, 243, 246
Principle VIII 45 International Court of Justice
Herri Batasuma and Batasuma v. Spain Advisory Opinion of 2010 3, 42-47, 49, 51,
2009 444 55-56, 73, 76, 82-85, 89, 129, 140-141, 144,
Higgins, Rosalyn, 320 152-154, 174, 176, 181, 198, 200-206, 215,
Hill, Christopher, 17, 263 217, 222, 245, 280, 292-302, 303, 324, 341,
Holbrooke, Richard, 119, 124, 262, 272, 274 345, 375, 377-378, 381, 383, 396, 411-412,
Holbrooke-Miloevi Agreement 122 388, 390, 420, 423-426, 427-428, 432,
Holkeri, Harri, 34 442-443
Honduras 336, 426 International Covenant on Civil and Political
Honduras Borders (Guatemala/Honduras) Rights 1966 191
Arbitration Article 1 60, 62, 90, 285, 287-288, 387, 435
1933 336-338 Article 27 285
Human Rights Committee International Covenant on Economic, Social
General Comment No. 12 62, 288 and Cultural Rights 1966
General Comment No. 25 189 Article 1 60, 62, 90, 285, 287, 387, 435
Humanitarian intervention 250-253, 366- International Criminal Court 233, 236, 241
367 International Criminal Tribunal for the
Former Yugoslavia 33, 75, 241, 360
I International Crisis Group Report 2006 101
Ibar River 29, 35, 306 International Independent Commission on
Ibarretxe, Juan Jos, 434, 437, 441 Kosovo 267, 271, 275-276
Ibarretxe Plan 2003 434-438, 441-444 International Law Association, Use of Force
Article 11 436 Committee 242-243
Article 12 436 International Monetary Fund 109, 134, 258
Article 13 435 International Steering Group 41
Article 14 436 International Territorial Administration 48-
Article 16 436 51, 95-98, 149, 173, 175, 177, 182, 194
Article 25 436 Inviolability of frontiers 11, 12, 282, 284, 296,
Article 68.1 435 317, 341, 389
Ignatie, Michael, 368 Ionian Islands 27
ILC Articles on the Responsibility of States Iraq-Kuwait Boundary Demarcation Com-
for mission 100
Internationally Wrongful Acts 2001 69 Ireland 227
Article 41(2) 159 Island of Palmas (Netherlands/US) Arbitra-
Illyrians 5, 110, 289 tion 1928 94
Index 449
Italy 16, 37, 40, 107, 254 Democratically elected representatives of

Ivanovic, Oliver, 314 the
Izetbegovic, Alija, 119 people of Kosovo 28, 40, 46-47, 83, 132,
153-154, 442
J Displaced persons/Refugees 19, 22, 28, 36,
Japan 134 274
Joint Advisory Council 26 Economy of 8, 30, 35, 36, 39, 67, 107
Joint Civilian Commissions 26 Egyptian community in 4
Judah, Tim, 267, 269, 273-275 Final Status of 22, 37, 38, 45, 48, 56, 68, 75,
Jus Cogens 13, 45, 63-64, 69, 74, 131, 152, 159- 79, 88-89, 98, 102, 124, 125, 149-151, 153,
160, 285-286, 294, 420 188, 215, 275, 292, 349-350, 357, 363, 370-
372, 377, 382-384, 411-412
K Geography 3, 87
Karabakh (see Nagorno-Karabakh) Gorani community in 4, 31, 40
Kashmir 227, 392 In Kosovar Albanian nationhood 4, 5, 66
Kastrioti-Skenderbeu, Gjergj, 111 In Serbian nationhood 4, 5, 66, 268
KFOR 18, 21, 30, 35, 36, 68, 80, 136, 148, 304, Independence option 3, 6, 10, 23-24, 28, 39,
313 49, 88-89, 94, 101-102, 107-108, 128, 150,
Kingdom of Serbs, Croats and Slovenes 5, 175, 196-197, 349, 368-370
109, 112, 290 Judiciary 25-26, 30, 41, 309
Kinkel, Klaus, 347 Legal system 30-31
Kiribati 426 Municipal government 26, 31, 32, 33, 305-
Koroma, Judge, 205, 292-293, 390 306
Koskenniemi, Martti, 104, 107, 284, 345, 387 Organised crime in 28, 29, 30, 310-311
Kosovo/Kosovo and Metohija Parallel institutions (Albanian) in 14, 15,
Albanian population in 5, 7, 8, 31, 34, 36, 121, 145, 214, 270, 357-358
66, Parallel structures (Serb) in 32, 33, 35, 137,
Albanianisation in 35 304-314
Annexation into Yugoslavia 114, 290 Partition of 38, 127, 314
As an Autonomous Province in Yugosla- Population 3-4, 6, 56, 87, 109, 270-271, 416
via 6-9, 115-117, 145, 186, 214, 225, 253- Precedent of 39, 40, 50-51, 67-68, 97, 130-
254, 267-271, 290-291, 320, 350-351, 353, 131, 181, 193, 198, 210, 212, 247, 334, 346-
355-356, 388, 413-415 348, 372, 375-393, 395-426, 427-444
Askali community in 4 Provisional Institutions of self-govern-
Bosniac community in 4, 31 ment 22, 28-36, 39, 42, 46-47, 56, 68,
Constitution 2008 158, 197 76, 79, 82-83, 95, 129, 132-133, 152-154,
Declaration of Independence, 21 September 182, 188-189, 194-195, 205, 223-224, 292,
1991 10, 117, 145, 151-154, 176-177, 269 304-305, 318, 345, 347, 349, 351, 374, 383,
Declaration of Independence, 17 February 388-390, 424, 425
2008 3, 6, 28, 40-49, 55, 74, 82-85, 87, 89, Recognition of 3, 10, 40, 41, 42, 104, 108,
99, 103, 104, 109, 129-134, 143-145, 151- 109, 129, 134, 141, 144, 162-163, 165, 173-
154, 160, 173-177, 181, 193, 196, 197-206, 174, 176, 181, 197, 209-210, 212, 295, 300,
209-212, 213-217, 222-223, 228, 246-247, 304, 346-349, 362, 372, 378, 386-393, 405-
251, 279-280, 292-302, 308-309, 319, 331, 407, 413, 416, 425-426, 443
334, 341, 345-347, 349-351, 353, 371, 375- Reintegration with Serbia option 39, 150
378, 382, 384, 386-391, 393, 396, 405, 407, Riots in (1981) 8-9, 115
410-411, 420, 423-425, 427-428, 430, 441, Riots in (2004) 35, 36
443 Roma community in 3, 28, 31
Demands for a Republic 7-10, 115, 225, 269,
291, 316, 351-353, 415
450 Index
Serbian community in 3-5, 8-9, 15, 28-36, L

40-41, 56, 66, 75, 81, 115, 117-118, 136,-137, League of Nations 27, 61, 70, 113, 290
289, 304-314, 332-333, 337, 341, 359, 420 Leposaviq 304-307, 310-311, 333
Serbianisation of 15, 113 London Conference 1913 112
Schools 15, 30, 145-146, 307 Lpez, Patxi, 444
Statehood criteria and 10, 38, 41, 43, 75, Loquai, Heinz, 364
130, 157-159, 163, 176-177 Lotus Principle 43, 84
Sui generis 49-50, 68, 85, 93, 97, 131, 175, Loughlin, Martin, 105, 251
177, 181, 194, 199-200, 204, 206-212, 346, Luck, Edward C., 367
348, 372-374, 390, 405-407 Lund Recommendations 1999 278
Turkish community in 3, 31
Union with another state 38, 127 M
Unique situation in 39, 40, 49-51, 87, 108, Macedonia 3, 5, 7, 10, 11, 21, 29, 87, 110, 116,
345-374, 375-376, 378, 382, 387, 390-391, 118, 163, 166, 263, 265, 276, 281-282, 314,
405, 407-410, 412-413, 422, 441 334, 367-368
End of Break-Up Argument 348-353 Madeira 60
Human Rights Violation Argument 348- Malaysia 20
349, 353-362 Manchukuo/Manchuria 65, 69, 70
Humanitarian Intervention Argu- Mandates 27
ment 348, 362-368 Masaryk, Thomas, 4
Immense UN Involvement Argu- Mayotte 71
ment 348, 368-372 Medvedev, Dmitry, 402
Violence against minority communi- Memorandum 9, 115
ties 28-29, 35-36, 48, 413, 420 Memorandum of Understanding 2005 362,
World War Two 114 386
Kosovo Assembly (established by UN- Mesi, Stjepan Stipe, 350
MIK) 28, 31, 32, 40, 46-47, 80, 132, 314, Metohija 6, 9, 345-374
375, 377-378, 382, 384, 389-390 Military Technical Agreement, Kumanovo
Kosovo Assembly (in Yugoslavia) 9-10, 269- 1999 21, 124, 148
270, 357 Mill, John Stuart, 27, 247
Kosovo Energy Corporation 311-312 Millet 110
Kosovo Liberation Army (KLA) 15, 16, 17, Miloevi, Slobodan, 5, 9, 15, 16, 33, 34, 39,
21, 28, 29, 30, 31, 35, 120-122, 146, 225, 66, 87, 91-93, 115, 119, 121, 168, 214, 258-
240-241, 251, 253, 261, 291, 360, 363, 388 260, 268-269, 274, 355, 358, 360, 363, 368,
Kosovo Police Service (KPS) 30, 35, 308-309, 377, 384, 413, 420
313 Milosevic 2004 241
Kosovo Presidency 28, 32, 40, 46-47 Milutinovi et. al. 2009 360
Kosovo Protection Corps (KPC) 29, 34, 35, Minority rights 113, 182-183, 186-189, 192,
137 195-196, 198, 209-212, 225, 253, 265, 267,
Kosovo Security Force 137 272, 275, 277-278, 284-285, 286-287, 293,
Kosovo Transitional Council 26 297, 301-302, 317, 331, 332, 354-362, 268,
Kosovo Vilayete 110-112 375-376, 391, 413, 420
Kotunica, Vojislav, 33, 371 Mitrovica 29, 35, 136, 304-309, 313, 333
Krajina, Republic of, 13, 14, 317, 331 Moldova 426
Krisniqi, Jakup, 314 Montenegro 3, 5, 7, 9, 10, 11, 38, 79, 92, 165,
Kumbaro, Dajena, 259, 271, 275, 277 168-171, 173, 269, 281
Kurds 62, 65, 227, 277 Montevideo Convention 1933 94, 96, 157,
Kuwait 70-71, 74 265
Moscow Agreement 1994 401
Mllerson, Rein, 373
Index 451
Muslim-Croat Federation (in Bosnia and OSCE Kosovo Verication Mission 122, 364
Herzegovina) 14, 119, 338 OSCE Mission of Long Duration in Kos-
ovo 119
N Ottoman Empire 109-111
Nacertania 111
Nagorno-Karabakh 67, 295, 421 P
Namibia 20, 72, 77 Palau 59
Namibia (Advisory Opinion) 1971 63, 72, 73, Palestine 227, 372
100, 104, 161 Pan-Slavism 111
National Movement of Albanians 314 Pani, Milan, 358
Native Americans 227 Paris Charter 1990 11
NATO Pellet, Alain, 287-288, 320
Air strikes in Bosnia 14 Portugal 162, 171-172, 384
Military Intervention in Yugoslavia Post-9/11 anti-terrorist era 221, 233, 235,
(FRY) 3, 18, 19, 20, 21, 39, 55-56, 67-68, 242
75-76, 87, 91, 93, 98, 108, 120, 124, 215, Pouvoir constituent 105
217, 240, 250, 252-254, 262, 272-275, 291, Presevo Valley 29, 314-315, 333, 337, 341
340, 345, 347, 349, 360, 362-367, 378-383, Prizren League 111
385-388, 393, 404, 418 Putin, Vladimir, 406
North Atlantic Council 17, 123-124, 262,
273 R
Operation Deliberate Force 379-381 Racak 17, 122, 364-365
Operation Deny Flight 379 Racial discrimination 160
Proposed Kosovo membership of 109, 134, Racist regimes 231-232, 237-238, 245
136-137, 139 Radan, Peter, 282-283
Role in Kosovo after independence declara- Rambouillet Conference/Accords 1999 17,
tion 40 18, 22, 23, 24, 121-124, 146-148, 187, 195,
Threat of force 17 251, 273-274, 411
Netherlands 20, 296, 300 Ranta, Helena, 365
Nicaragua (Nicaragua v. US) 1986 324 Redzepi, Orhan, 314
Non international armed conict 229, 234-
237, 239-241, 244 Q
Non intervention/interference 218-219, 221, Quane, Helen, 300
226, 229, 232, 246, 295, 323, 423
Non-recognition 56, 67-77 R
Non-self-governing territories 27, 49, 59, 62- Rankovi, Alexander, 7, 114
63, 78, 95, 97-98, 130, 171, 213, 294, 357 Ratner, Steven, 321, 335
North Atlantic Treaty 1949 Re Secession of Quebec 1997 43, 45, 91-92,
Article 5 379-380 152, 154-157, 164, 174, 293, 297-298, 332,
Article 6 379 416, 418, 425, 429, 442
Northern Cyprus 45, 65, 70, 74, 279, 420 Recognition of states 43, 156, 159-167, 263,
Northern Ireland 356 266, 276-277, 299, 387, 391, 393, 404, 406-
407, 417-418, 421
O Constitutive 144, 163-164, 167, 171, 174, 265,
Obama, Barack, 392 417
Organisation of African Unity 326 Declaratory 144, 163, 166, 171, 176, 265, 417
Article 3(3), Charter 1963 323, 325 Premature 89, 96, 423
Cairo Resolution 1964 323, 325 Remedies for Serbia 57
OSCE 18, 25, 254-255, 263, 274, 278, 311-312, Reparation for Injuries Suered in the Serv-
364 ice of the
452 Index
United Nations (Advisory Opinion) Right of under the Yugoslav Constitu-

1949 418 tion 6, 78, 352, 416
Republika Srpska 13, 14, 16, 45, 119, 266-267, Remedial 44-45, 48, 60, 71, 75, 85, 91-94,
317, 331, 338, 393, 411 109, 130-131, 140, 152, 155-156, 184, 192-
Responsibility to Protect (R2P) 366-368 193, 202-206, 208, 211-212, 224, 293, 296-
Rexhepi, Bajram, 32, 36 298, 300-302, 330, 332-333, 337, 341, 346,
Rice, Condoleezza, 348 354-356, 360-361, 424-425
Rodley, Nigel, 408 Territorial integrity and 45, 50, 90, 140-141,
Rohan, Albert, 128 155, 165, 208, 282, 428
Romania 129, 137, 296 Ultima ratio 202
Rome Statute for an International Criminal Security Council
Court 1999 241 Authorisation of force by 19, 381
Rugova, Ibrahim, 11, 15, 32, 119, 255, 259, 270, Creation of states and 57
353, 359 Obligations of 80-81
Russia 16, 17, 18, 20, 21, 37, 38, 39-40, 42, 111, Practice in recognition of UDIs 45, 70-72
128, 150, 194, 222, 224, 254, 303, 377, 393, Sovereign rights and 90, 99-103
399-411, 416, 418, 421, 422, 426 Status of Kosovo negotiations 37, 39-40,
Recognition of Abkhazia and South Osse- 128
tia 44, 51, 67 Security Council Resolution 384, 1975 162
Security Council Resolution 389, 1976 162
S Security Council Resolution 661, 1990 71
Saakashvili, Mikheil, 402 Security Council Resolution 713, 1991 98
Sarkozy, Nicolas, 402 Security Council Resolution 787, 1992 411
Sawers, John, 407 Security Council Resolution 816, 1993 379
Secession Security Council Resolution 1160, 1998 16,
By Abkhazia and South Ossetia 67, 397- 17, 122, 124, 146, 259
407, 413-426 Paragraph 4 260
By Basques 430, 432 Paragraph 16(a) 260
By Serbs in Bosnia and Herzegovina 13-14, Security Council Resolution 1199, 1998 122,
16, 118, 256 124, 146, 259, 261-262
By Serbs in Croatia 13 Security Council Resolution 1203, 1998 20,
By Slovenia and Croatia 166-167, 187 122, 124, 146, 263
In Spain 428-430, 432 Security Council Resolution 1239, 1999 146
In State Union of Serbia and Monten- Security Council Resolution 1244, 1999 21,
gro 168-171, 173 22, 23, 24, 27, 39, 41, 42, 48-49, 56, 68,
Kosovo as a secession 14, 47-51, 67-68, 75, 75-77, 81-82, 84-85, 88-89, 95-99, 101,
85, 88, 152, 154, 193, 196, 198, 213-214, 103-104, 123-124, 125, 131, 139, 148-149,
228, 245, 249, 257, 269, 277, 280, 289- 151-154, 158, 160, 162, 175, 182, 188-190, 198,
293, 297-299, 314, 318-319, 332, 349, 386- 201, 203-205, 211, 215, 223, 291-292, 294-
390, 393, 405-407, 410-418, 422-430, 432 295, 300, 302, 318, 341, 361, 363, 369, 371,
Legality of 43, 67, 78, 84, 108, 152, 154-157, 377-378, 382-385, 389, 410-412, 425, 428,
160, 164, 174, 176, 184, 204, 208, 223, 442-443
228-229, 249, 277, 279, 286, 293, 298-302, Preamble 148, 383
354, 375, 388-392, 415-416, 419-420, 422- Annex 1 383
423, 432 Annex 2 79, 383
Neutrality on 43, 156, 387 Lex Specialis of 42, 46-47, 84, 153, 161, 389
Right of 43-44, 60, 90-92, 130, 140, 152, Paragraph 10 79
184, 277, 279, 286, 296-298, 354, 386-389, Paragraph 11(a) 79
432 Paragraph 19 80
Security Council Resolution 1251, 1999 411
Index 453
Security Council Resolution 1264, 1999 172 Serbian National Assembly 9, 38, 39, 114,
Security Council Resolution 1272, 1999 24, 116, 268, 291
172 Serbian nationalism 5, 9, 15, 115, 268
Security Council Resolution 1338, 2001 172- Serbian Progressive Party 306
173 Serbian Radical Party 306
Self-defence 234-235 Shaw, Malcolm, 156, 245-246, 284, 298, 320,
Self-determination 6, 11, 12, 13, 18, 23, 24, 322, 324, 326, 328
40, 45, 47, 50, 56, 65-67, 69, 71, 77-78, 85, Simma, Judge, 388
87, 89, 90-94, 96, 98, 101, 130-131, 133, 152, Singapore 59
155-156, 160, 162, 213-247, 253, 256, 296, Skotnikov, Judge, 224, 412
318-319, 340, 346, 353-354, 357, 368, 375, Slovakia 129, 137
378, 385-388, 392, 395, 396, 405-407, 412, Slovenia 5, 9, 10, 11, 20, 166-167, 265, 281-
416-417, 420, 422-426, 429-430, 432, 434- 282, 287, 329-330, 349-351, 410
435, 442-443 Smith, Ian, 96
Alien occupation and 76, 92, 146, 231-232, South Africa 65, 72, 279
237-238, 286, 294 South Ossetia 44, 51, 67, 200, 363. 373, 393,
Colonial 60-64, 78, 90-92, 96, 171, 173, 201, 396-404, 406-409, 413, 415-416, 421-422,
225, 230-231, 237-238, 276, 286, 293-294, 426
315, 325, 406, 429, 432, 442-443 Southern Rhodesia 45, 65, 72, 96, 100, 420
Erga omnes 60, 61, 90, 104, 109, 111, 113, 116 Sochi Agreement 1992 402
Friendly exercise of 213-214, 217, 233, 245 Socially-Owned Enterprises 35
Gradated approach 196 Sovereign equality 225, 377
Internal and external aspects 44, 60, 75, Sovereignty 3, 5, 18, 20, 22, 40, 43, 46-51, 56,
91-92, 110, 124-125, 154, 182-187, 189-196, 59, 64, 68, 72, 75-77, 79-82, 87-89, 109, 131,
198-199, 201-212, 229, 233, 260, 266, 136, 140-141, 148, 181, 207, 215, 253, 350,
270-272, 275-277, 286, 289, 291-293, 295, 378, 383-385, 400, 405, 410-412, 415, 422,
297-302, 316, 331, 333, 337, 354-356, 358, 428, 430, 432, 433, 438, 440-442, 444
377-378, 384, 386-387, 423, 443-443 Aecting self-determination (Western Sa-
Jus cogens 63-64 hara) 45
Legal right/political principle 60, 62-63, Assertion of 104, 107
224-225, 246, 395-396 Earned 27
Non/post-colonial exercise 60, 89-90, 98, Internal and external aspects 105-106
133, 159, 201, 224, 228, 232, 246, 286, 301 Loss of 89-104
Peaceful exercise of 217, 233, 245-246 Soviet Union 11, 165, 323, 327, 328-329, 397-
Peoples, as holders of 58, 64-65, 227, 288, 398, 400, 413-417
292, 332, 386, 416 Constitution 1977 352
Process of 58-60, 64-65, 90 Article 72 415
Serbia 3, 5, 7, 10, 11, 13, 34, 35, 37, 38, 39-40, Spain 103, 137, 391, 427-444
42, 47-50, 65-67, 74-76, 79-82, 87, 92, 101, Constitution 1978
116, 129, 131, 133, 137-141, 150, 168, 194, 245, Article 1.2 432, 438
261, 271, 273, 281, 284, 303, 306, 311, 315, Article 2 431-432, 438, 441
320, 330, 334-335, 345-346, 349-352, 355- Article 92 437
359, 361, 363-364, 366, 368-371, 377-378, Article 143 431
380, 383-386, 391, 418, 423, 428 Article 145 433
Constitution 1990 268, 291, 356 Article 147.3 433
Constitution 2006 356 Article 149 433
No consent to Kosovo separation 89, 144, Article 149.1.32 437, 440
154, 173, 301, 318, 303, 330 Article 151.2 433
Succession to the Federal Republic of Yugo- Article 155 433, 436
slavia 22-23, 47, 80, 148, 169, 361 Article 168 438, 441
454 Index
Spanish Constitutional Court 429, 431, Thaci, Hashim, 121,123

434, 436, 438-444 Tibet 277, 392
Order 135/2004 436 Title to territory 94, 96-97, 99
Law 6/2002 444 Tito, Josep Broz, 5, 7, 8, 66, 115, 268, 352
Popular Party 434, 437, 444 Tomuschat, Christian, 320
Socialist Party 434, 437 Tosk 4, 8
Special Group for Kosovo 119 Trainin, I. P., 222, 224-225
Special Rapporteur, Commission on Human Transdniestria 67, 200, 295, 363, 421
Rights 269 Troika 40
Special Representative of the Secretary- Trust Territories 27, 63
General (SRSG) 25, 26, 28, 31, 32, 34, 47, Trusteeship 26, 27, 49, 51, 62, 149
81, 103, 125, 132, 149, 188, 223, 389 Tunisia/Libya Continental Shelf 1982 339
Lack of response to UDI 47, 85, 389 Turkey 40, 129
Marginalisation of 41, 80 Tuvalu 426
Reserved powers of 33
Veto by 33, 47, 223 U
Srebrenica 14, 119, 124 Unilateral Declarations of independence
Standards before status 27, 31, 34, 36, 37, Eects of 156
49, 125, 189 Eectiveness of 105
Standards with status 37, 125, 189 Legality of 43-45, 80, 83-85, 131, 152, 215,
Standards for Kosovo Document 2003 34 223-224, 294, 374, 388-390, 420, 424,
State Union of Serbia and Montenegro 169 442-443
Constitution 2003 169 Non-state actors and 45, 84-85, 200
Independence Referendum Act 2006 170 United Kingdom (see Britain)
Statute of the International Court of Justice United Nations
1945 High-Level Panel on Threats, Challenges
Article 65 130 and
Steiner, Michael, 34 Change 234
Stimson, Henry, 69 Potential for Kosovo membership 109,
Stimson Doctrine 68-69 134-136
Sweden 174 United Nations Charter 1945
Switzerland 357 Article 1(1) 100
Article 1(2) 61, 64, 286
T Article 2(4) 45, 98, 294, 323-324
Taiwan 49, 74, 391-393, 405, 416 Article 2(7) 61, 244
Talbott, Strobe, 367 Article 12 130, 226
Tagliavini, Heidi, 404 Article 14 226
Temple of Preah Vihear (Cambodia v Thai- Article 27 103
land) 1962 329 Article 39 99
Tepermann, Jonathan, 387-388 Article 40 102
Territorial integrity 11, 12, 16, 18, 22, 23, 24, Article 41 99-100
38, 45, 50, 78, 80, 88-91, 97-98, 100, 104, Article 42 102
109, 117, 123, 131, 136, 140-141, 146, 148, Article 51 234, 379-380, 402, 408
155-156, 160, 162, 173, 176, 181, 183-184, 187, Article 55 61, 64, 286
191, 194, 200, 207-210, 212, 232, 253-254, Article 73 62
256-257, 270, 274, 277, 281-282, 284-285, Article 77(1)(c) 27
289, 294, 317, 323-329, 336, 346, 353, 361, Article 96 130, 226
363, 374, 383-384, 386, 389, 391, 405, 410- Chapter VI 100
412, 422, 425 Chapter VII 68-70, 77, 99-100, 146, 161,
Tetevo, Macedonia 29, 334 172-173, 188-189, 208, 211, 215
Index 455
Chapter XII 149 World War II 230, 290

Non-acquisition of territory by force 218 Wright, Quincy, 417-418
United Nations Secretary-General 36, 37,
40, 102-104, 125, 127, 128, 217, 234 Y
United States 16, 17, 37, 40, 70, 129, 134, 137, Yugoslavia 113
151, 194, 221, 254, 258, 264, 355, 359, 368, Yugoslavia (Federal Republic of ) 11, 16-18,
371, 392, 404, 416 21-22, 47, 67, 79-80, 124-125, 146-149, 160,
Supreme Court 416-417 163, 166, 168-170, 176, 182-184, 186-189,
UNAMA 385 194, 203, 211, 249-277, 279, 298, 302, 318-
UNFICYP 369 319, 330, 349, 361, 378-385, 410-411, 417
UNHCR 25, 28, 274 Arms embargo on 258-259
UNIFIL 369 Yugoslavia (Kingdom of ) 5, 110, 112-113, 290
UNPROFOR 13, 14 Declaration for Protection of Minori-
UNMIK 22, 25, 26, 27, 28, 30-32, 35, 36, 37, ties 113
39, 57, 78-80, 85, 95, 97-98, 124, 137, 188- Yugoslavia (Socalist Federal Republic of )
189, 197, 277, 304-306, 308, 312-314, 331, Arms embargo on territory of 13
369, 383, 389, 410, 443 Dissolution of 165-167, 199, 253, 279-282,
Police 30, 35, 36, 42 287, 296, 304, 315-317, 323, 329, 341, 348-
Reconguration of 41, 42 353, 376-377, 407, 413-414, 417
Regulation 1999/1 25, 132, 149 Structure of 5, 6, 350-351
Regulation 2000/45 31 Collective Presidency of 8, 10
Structure 25, 295 Constitution 1946 6, 290
UNMIS 369 Constitution 1963 290
UNOSEK 37, 38, 39, 126-127 Constitution 1974 6, 7, 8, 12, 13, 115, 117,
UNTAES 14, 48, 97, 410 145, 213, 225, 253, 263, 265, 267, 270-271,
UNTAET 24, 25, 48, 172, 410 290, 315-316, 319, 320, 350-352, 359, 414
Uti Possidetis 12, 13, 89, 117, 230, 265-266, Constitutional Law 1953 290
270, 275, 280, 282-285, 289, 292, 296, 301- Hungarians in 6, 7, 316
302, 303-304, 315-331, 335-342 Nations 6, 7, 13, 66, 267-268, 290, 315-316,
352
V Nationalities 7, 267-268, 290, 316, 352
Vickers, Miranda, 359 Yusuf, Judge, 205-206, 300-301
Vllasi, Azem, 415
Voivodina 6, 7, 9, 67, 92-93, 267, 269, 316 Z
Zanzibar 59
W Zapatero, Jos Luis Rodrguez 437
Walker, Neil, 105-106 Zimmermann, Warren 359
Walker, William, 122, 365 Zubin Potok 304-306, 308, 310, 311, 333
Wall in Occupied Palestinian Territory (Ad- Zvean 304-306, 314, 333
visory Opinion) 2004 60
Warbrick, Colin, 107, 174
Weller, Marc, 319
Western Sahara (Advisory Opinion)
1975 45, 58
Western Slavonia 14
Westerwelle, Guido, 346
Williams v. Bruy 1877 416-417
World Bank 109, 134, 258
World Summit Outcome Document
2005 366-367

Kosovo: A Precedent? The Declaration of Independence, The Advisory Opinion and Implications For Statehood, Self-Determination and Minority Rights

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Kosovo: A Precedent?

The Declaration of Independence, the Advisory

Library of Congress Cataloging-in-Publication Data

Kosovo - a precedent? : the declaration of independence, the advisory

isbn: 978 9004 17599 0

Copyright 2011 by Koninklijke Brill nv, Leiden, The Netherlands.

Notes on the Contributors xi

Chapter 1 Kosovo: From Yugoslav Province to Disputed Independence 3

Part II Kosovos Unilateral Declaration of Independence 53

Chapter 2 Another Frozen Conflict:

Chapter 3 From Province to Protectorate to State: Sovereignty Lost,

Chapter 4 A Contemporary Interpretation of the Principles of

Chapter 5 Kosovo: Unilateral Secession and Multilateral State-Making 143

Part III Kosovo and Self-Determination and Minority Rights 179

Chapter 6 Self-Determination and Minority Protection after Kosovo 181

Chapter 7 Post-World War 2 Exercises of Self-Determination:

Chapter 8 The Long Intervention in Kosovo:

Chapter 9 Kosovos Independence:

Part IV Implications of Kosovo as a Precedent for Other Regions 343

Chapter 11 Is Kosovo and Metohija Indeed a Unique Case? 345

Chapter 12 The Impact of the Kosovo Precedent on

Chapter 13 The Impact of Kosovo:

Chapter 14 The Basque Country: With or Without the Spanish

Dr. ELIZABETH CHADWICK is a Reader in Law at Nottingham Law School, Not-

Dr. GULARA GULIYEVA is a Teaching Fellow at the Law School, University of

EDWARD GUNTRIP is a PhD Candidate at Brunel University. His research inter-

Dr. MIRYAM RODRGUEZ-IZQUIERDO SERRANO is Professor of Constitution-

sidiarity Principle in EU Law, which was published as Posibilidades Constitucionales

BESFORT RRECAJ is a Lecturer at the University of Pristina. He is a PhD Candidate

Dr. JAMES SUMMERS is a Lecturer in Law at Lancaster University. He is the author

Professor STEPHEN TIERNEY is Professor of Constitutional Theory at the School

Dr. SNEANA TRIFUNOVSKA is Associate Professor at the Law Faculty, Radboud

VAKHTANG VAKHTANGIDZE is a graduate of the Sokhumi Branch of Tbilisi

Dr. JURE VIDMAR is an Anglo-German Fellow at the Institute of European and

COLIN WARBRICK retired as Barber Professor Jurisprudence at the Birmingham

CR Compte Rendu (Verbatim Records) (ICJ)

SFRY Socialist Federal Republic of Yugoslavia

Statistical Oce of Kosovo, Demographic Changes of the Kosovo Population -

sal status. Nonetheless, Kosovos place in Serbias sense of nationhood is secured

2 Kosovo as a Yugoslav Province

corresponded with ve nations: Slovenes, Serbs, Croats, Montenegrins and Mace-

Malcolm, note above, .

3 The Break Up of Yugoslavia

Vickers, note above, -, .

Vickers, note above, -, ; Judah, note above, -.

Meier, note above, -.

it is well established that, whatever the circumstances, the right to self-determination

Arbitration Commission of the Peace Conference on Yugoslavia, Opinion No. , Inter-

deployed rst in Croatia, and then, as the conict spread, Bosnia-Herzegovina.69

See United Nations Protection Force, Background. Accessed October . http://

Malcolm, note above, -; Judah, note above, ; Vickers, note above, -

4 The KLA Insurgency and the Rambouillet Negotiations

Vickers, note above, .

SC Res. , UN Doc. S/RES/ ( March ), para. .

Yugoslavia presented proposals which fundamentally challenged it. On 18 March

Ibid. -; Alex J. Bellamy, Kosovo and International Society (Palgrave MacMillan,

and disproportionate use of force in Kosovo.104 However, this action signicantly

Javier Solana, Secretary General of NATO, Press Statement, March . Accessed

US, UN Doc. S/PV. ( March ), .

6 Security Council Resolution 1244

Pakistan, UN Doc. S/PV. ( May ), .

Paragraph (d) and (e).

Written Statement of China, April , ; Written Statement of Cyprus, April