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I. KOSOVO: THE DECLARATION OF INDEPENDENCE

  • Colin Warbrick (a1)
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1 For a comprehensive treatment, see N Malcolm, Kosovo: A Short History (Papermac, London, 1998) ch 17, ‘Kosovo after the Death of Tito, 1981–1997’.

2 ‘Kosova Declaration of Independence’ Pristina (17 February 2008), which uses the terms ‘Republika e Kosoves’, ‘Republika Kosova’ and ‘Republic of Kosovo’, <http://www.assembly-kosova.org/?krye=news&newsid=1635&lang=en>. I shall use ‘Kosovo’ to refer to the territorial area and as an entity within ‘Yugoslavia’ (n 10) and ‘Republic of Kosovo’ to refer to it as a (putative) State. For extensive information, see <www.politicalresources.net/kosovo.htm>.

3 R Rich, ‘Recognition of States: the Collapse of Yugoslavia and the Soviet Union’ (1994) 4 European Journal of International Law 36.

4 The ‘Federal Socialist Republic of Yugoslavia’ (SFRY) was the name of the single State of Yugoslavia when the process of its disintegration began.

5 M Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 British Yearbook of International Law 333.

6 Badinter Commission, Opinion No 1, (1993) 92 International Law Reports 165.

7 Kosovo had been a federal entity under the SFRY Constitution of 1974—a self-administering province—but its status was withdrawn by Serbia in 1989.

8 That is to say, Slovenia, Croatia, Macedonia, Bosnia-Herzegovina, Serbia, and Montenegro. For the dates from when the Badinter Commission regarded them as States, see Opinion No 11, (1994) 96 International Law Reports 720.

9 C Warbrick, ‘States and Recognition in International Law’ in M Evans (ed), International Law (2nd edn, OUP, Oxford, 2006) 263–70.

10 SFRY changed its name to the Federal Republic of Yugoslavia (claiming still to be the same State). In November 2000, it relinquished that claim and was admitted to the UN under the name, ‘Serbia-Montenegro’. Montenegro became independent in 2006. ‘Serbia’ continued as the same State as Serbia-Montenegro but under its new name.

11 T Judah, Kosovo: War and Revenge (Yale UP, New Haven, 2000) 102–120.

12 H Kreiger (ed), The Kosovo Crisis and International Law (CUP, Cambridge, 2001) 261–78.

13 T Judah, Kosovo: War and Revenge (n 11) 236–84.

14 UKMIL 2000, (2000) 71 British Yearbook of International Law 649.

15 Before Resolution 1244 was passed, KFOR (the NATO-commanded security presence to enter Kosovo on the termination of the bombing of the FRY) entered into a military technical agreement with the FRY and the Government of Serbia, regulating the force's presence in Kosovo. See E Milano, ‘Security Council Action in the Balkans: Reviewing the Legality of Kosovo's Territorial Status’ (2003) 14 European Journal of International Law 999.

16 Annex 2 refers to the ‘territorial integrity and sovereignty’ of the FRY.

17 S/PV.4011, 7–9.

18 ibid 12.

19 See Annual Reports of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, of which the latest is S/2007/582 (28 September 2007).

20 Serbia's Constitution was amended in 2006 to make it clear that Kosovo was forever an integral part of Serbia.

21 See, ‘The Kosovo Standards Process’, <www.unmikonline.org/standards/docs/KSP2003-2007.pdf>.

22 Letter dated 26 March 2007 from the Secretary General addressed to the President of the Security Council and Report of the Special Envoy of the Secretary General on Kosovo's future status, S/2007/168 and S/2007/168/Add.1 (26 March 2007).

23 Reaffirmed on 17 February 2008, Statement of NATO Secretary General, <www.nato.int/docu/pr/2008/p08-021e.html>.

24 The EU made its decision to support Kosovo in September 2007 and decided that there were no prospects in further negotiation in December 2007. The EU details were finalized in the Council Joint Action 2008/124/CFSP (4 February 2008)—the EU Rule of Law Mission in Kosovo (EULEX KOSOVO).

25 The ‘Troika’ of the US, Russia and the EU concluded that negotiations would not reach a result in December 2007.

26 S/PV.5821.

27 The website <www.kosovothanksyou.com> contains the texts of recognition decisions communicated to the Government of Kosovo. References to the statements of individual States have been taken from this site, except where specifically indicated to the contrary.

28 The concern may be simply political—that Kosovo would be cited by every potential separatist movement. In legal terms, the implication is that Kosovo is seen as the (mere) application of a general rule, capable of being applied to similar instances of claims to independence; or that it is the vindication of a general power, that somewhere in the international system is the power to deprive a State of its title (and to create a new State on the territory of which it has been dispossessed.

29 See, eg, Serbia's President Tadic in the Security Council, S/PV.5821, 3. For somewhat equivocal support, see UK in Security Council, S/PV.5839, 13.

30 See below, n 50 for individual criminal responsibility.

31 See Milano (n 15), considering whether or not the FRY's agreement to the KFOR intervention in Kosovo was obtained by the unlawful use of force.

32 Notably in East Timor/Timor-Leste, SC Resolution 1272. See J Crawford, The Creation of States in International Law (2nd edn, CUP, Cambridge, 2006) 560–62.

33 Italy in the Security Council, S/PV. 5839, 9.

34 See Crawford (n 32) 140–43.

35 J Crawford, ‘State Practice and International Law in Relation to Secession’ (1998) 69 British Yearbook of International Law 85.

36 See J Friedrich, ‘UNMIK in Kosovo: Struggling with Uncertainty’ (2005) 9 Max Planck Yearbook of United Nations Law 225, a very useful piece.

37 eg President Tadic in the Security Council, S/PV.5839, 6. The position is similar to that taken by the British Government in the face of the ‘Unilateral Declaration of Independence’ by the rebel regime in Rhodesia in 1965, when the UK maintained that it was still the sovereign but that it would not use force to assert that sovereignty in fact. That they UK position prevailed was because of the considerations of the self-determination of the people of Rhodesia, considerations which do not apply to Kosovo.

38 Serbs destroyed border posts between Kosovo and Serbia, requiring UN police to be replaced by KFOR troops, <http://uk.reuters.com/article/latestCrisis/idUKHAM95844820080219>.

39 Crawford (n 32) 22–26.

40 SC Res 143, 145, 146. There were international peace and security considerations which arose out of the threat of secession from the Congo of the province of Katanga, whereas here, the continued place of Kosovo in Serbia is identified as the threat to international stability.

41 eg even if not a perfect one, Iraq.

42 Conditional recognition is to be distinguished from conditional Statehood (also a mysterious category), see above, Friedrich (n 36).

43 On the Australian decision, see R Piotrowicz, ‘The Decision to Recognise Kosovo' Australian Law Journal (forthcoming).

44 Foreign Secretary, HC Hansard, Vol 472 col 20WS (19 February 2008).

45 The US Under Secretary of State for Political Affairs said on several occasions in a press conference that NATO troops were needed in the Republic of Kosovo to help it establish itself, pp 2 and 4, <www.state.gov/p/us/rm/2008/100976.htm> (18 February 2008).

46 Serbia's ‘Plan of Action’ involves the recall of its Ambassadors from any State which recognizes the Republic of Kosovo and that it will take ‘concrete measures’ against such States, <www.srbija.sr.gov.yu/vesti/vest.php?id=43314>.

47 Statement by Ministry of Foreign Affairs of the Russian Federation, 216 (17 February 2008).

48 BBC News (19 February 2008).

49 Three other EU States have said that they will not recognize the Republic of Kosovo—Cyprus, Slovakia and Romania.

50 Case No IT-99-37-PT Milutinovic et al (Third Indictment). Ex-President Milosevic was facing charges relating to Kosovo when he died. An Indictment has been issued against Kosovar leaders for conduct in the civil war against the FRY Government, Case No IT-04-84-T Haradinaj et al (Fourth Indictment), without it being suggested that the rights of the people of Kosovo should in any way be diminished.

51 UNGA (Res 2625 xxv) Declaration on the Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the chapter of the United Nations.

52 S Joseph et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd edn, OUP, Oxford, 2004) 148–51.

53 D Mursweik, The Issue of a Right of Secession-Reconsidered, in C Tomuschat (ed), modern Law of Self-Determination (Martinus Nijhoff, Dordrecht, 1993) 21–40. That internal self-determination includes an ultimate right of secession is denied in a recent survey of the modern law of self-determination, P Hilpold, ‘Self-determination in the 21st Century: Modern Perspectives on and Old Concept’ (2007) 37 Israel Yearbook on Human Rights, 246, 284.

54 See above n 35.

55 C Tomuschat, ‘Yugoslavia's Damaged Sovereignty over the Province of Kosovo’ in G Kreijen et al (eds), State, Sovereignty and International Governance (OUP, Oxford, 2002) 323.

56 ibid 341.

57 ibid 347.

58 ibid 344.

59 (n 32) 251–54.

60 SC debate (18 February 2008) S/PV.5839.

61 ibid 12.

62 ibid 3.

63 E Lefever, Uncertain Mandate: Politics of the UN Congo Operation (Johns Hopkins UP, Baltimore, 1967); G Abi-Saab, The United Nations Operation in the Congo, 1960–1964 (OUP, Oxford, 1978).

64 S/PV.5839, 6.

65 ibid.

66 ibid 7–8 and 14.

67 ibid 12.

68 For instance, South Africa, ibid 16, conscious of the importance to African States of the principle of territorial integrity.

69 ibid 10.

70 ibid. In the Ahtisaari Principles, it is provided that there will be an International Civilian Representative … who shall be appointed by an International Steering Group [a self-selecting group of States] who shall be the ultimate supervisory authority over implementation of the Settlement. The International Civilian Representative shall have no direct role in the administration of Kosovo, but shall have strong corrective powers to ensure successful implementation of the Settlement. Among his/her powers is the ability to annul decisions or laws adopted by Kosovo authorities and sanction and remove public officials whose actions he/she determines to be inconsistent with the Settlement. The mandate of the International Civilian Representative shall continue until the International Steering Group determines that Kosovo has implemented the terms of the Settlement.

71 Crawford (n 32) 88–89.

72 Copy supplied by the Foreign and Commonwealth Office.

73 ibid.

74 eg Hong Kong.

75 Above, n 45.

76 See above, n 70.

77 Treaties of Alliance and Guarantee (1960) 164 BFSP 388, 557.

78 Taiwan, incidentally, has recognized Kosovo.

79 For instance, local elections will take place in Serbia in May 2008. The Serbian Government has announced its intention to conduct those elections in Kosovo.

80 Serbia has protested about the creation of the ‘International Steering Group’ of 15 States which have recognized the Republic of Kosovo (the representative of which will also be the International Civilian Officer in Kosovo) because it falls outside the mandate under Resolution 1244, <www.voanews.com/english/2008-02-29-voa58.cfm>.

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