1 “What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of post-war history, but the end of history as such: that is, the end point of mankind's ideological evolution and the universalisation of Western liberal democracy as the final form of human government.” See Francis Fukuyama, The End of History?, The National Interest (1989). For a remarkable critique of Fukuyama's thesis, see Jacques Derrida, Spectres of Marx - the State of the Debt, the Work of Mourning, and the New International (1994).Google Scholar

2 The UNSC, acting under Articles 39 and 40 of the Chapter VII of the Charter of the United Nations (hereinafter the Charter), reacted swiftly, passing Resolutions 660 and 661, which condemned the invasion, demanded an immediate withdrawal of Iraqi troops and placed economic sanctions on Iraq. See S.C. Res. 660 (August 2, 1990); S.C. Res. 661 (August 6, 1990). Resolution 661 determined that Iraq had failed to comply with paragraph 2 of Resolution 660 demanding its immediate and unconditional withdrawal from Kuwait's territory, and as a consequence imposed economic sanctions on Iraq. Unyielding, Iraq ignored a long series of UN Security Council and Arab League resolutions related to the conflict. One of the most important was UNSC Resolution 678 (S.C. Res. 678 (November 29, 1990)), passed under Chapter VII of the Charter, giving Iraq a withdrawal deadline of 15 January 1991 and authorizing member states to use “all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” As a result of Iraq's failure to comply with the UNSC conditions, a US led coalition launched a massive air campaign codenamed Operation Desert Storm, which was followed by a ground offensive (Operation Desert Sabre), finally resulting in Iraq's military defeat and withdrawal from Kuwait. S.C. Res. 686 (March 2, 1991) and S.C. Res. 687 (April 3, 1991) regulated the aftermath of the conflict. Parallel to these military operations, the coalition conducted Operation Desert Shield aimed at defending Saudi Arabia from Iraqi invasion.Google Scholar

3 The no-fly zones (hereinafter NFZs) were proclaimed by the United States, United Kingdom and France (the last of these later withdrew from the operation) after the Gulf War of 1991 within the framework of Operation Provide Comfort, aimed at protecting the Kurds in the north and Shiite Muslims in the south against the repression of Saddam Hussein's regime. While some argued in favour of the legality of such operations, others criticized the view that Resolution 688 gave the US, UK and France implied authorization to militarily enforce the NFZ, claiming that the Resolution was not passed under Chapter VII and consequently that it did not authorize the use of force. See the following for a view opposing the legality of the established NFZs: Robert Dreyfuss, Persian Gulf-or Tonkin Gulf? Illegal no-fly zones could be war's trip wire, 13 The American Prospect (2002); Christine Gray, From Unity to Polarization: International Law and the Use of Force against Iraq, 13 EJIL (2002).Google Scholar

4 One can distinguish two types of unilateral acts: individual unilateral acts that express the will of only one subject of international law, or collective unilateral acts where a single group of subjects acts collectively. See Pierre-Marie Dupuy, The Place and Role of Unilateralism in Contemporary International Law, 11 EJIL 20, 19–29 (2000).Google Scholar

5 For example, Operation Desert Fox in 1998, and other instances of aerial raids of Iraq within the period 1991–2002.Google Scholar

6 Retaliatory attacks for the bombings of US embassies in Kenya and Tanzania against the alleged facilities of the perpetrators of the terrorist attacks and their support networks.Google Scholar

7 Whereas NATO claimed legal justification for these operations in Article 51 of the Charter, as in the later cases of the 2001 war in Afghanistan after the 9/11 terrorist attacks on the US and arguably for the 2003 second Gulf war, the justification for the 1999 war against the Federal Republic of Yugoslavia (hereinafter FRY) was grounded upon the doctrine of humanitarian interventions. See The Attorney General Lord Goldsmith, The Goldsmith memo, (March 7, 2003), http://tomjoad.org/goldsmithmemo.pdf, for an overview of possible legal justifications for the aforementioned actions and for a factual assessment of their points in common and differences.Google Scholar

8 The Serbian Government has adopted a decision to add its stance on Kosovo to the new Serbian Constitution. According to the decision, the draft of the new Serbian constitution will grant Kosovo in its preamble “a substantial autonomy” but it will unambiguously assert that Kosovo remains under the sovereignty of the Republic of Serbia. See http://www.b92.net/eng/news/politicsarticle.php?yyyy=2006&mm=09&dd=14&nav_category=92&nav_id=3658.Google Scholar

9 See Claude Cahn in this symposium for an account of the continuing violence against Roma in Kosovo.Google Scholar

10 The World Bank Kosovo Country Brief (2006), http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/ECAEXT/KOSOVOEXTN/0,,contentMDK:20629286~pagePK:141137~piPK:141127~theSitePK:297770,00.html.Google Scholar

11 International Crisis Group, Kosovo: Toward Final Status, Europe Report 161 (January 24, 2005).Google Scholar

12 DiCarlo, Rosemary, US Deputy Assistant Secretary for Europe and Eurasian Affairs, in an interview with the Russian Kommersant daily (18th January 2006), sketched the US position on the future status of Kosovo: “We believe that the situation in Kosovo and Kosovo itself are a unique phenomenon.” She also added that the example of Kosovo (implying possible independence without Serbia's agreement) is not to be used as a precedent for other areas in the World. Vladimir Putin, the President of the Russian Federation, said during his 31 January 2006 press conference broadcasted live on Russian state television that there is a need for “universal principles” to settle “frozen” conflicts such as the one in Kosovo or those in Abkhazia and South Ossetia: “We need common principles to find a fair solution to these problems for the benefit of all people living in conflict-stricken territories…. If people believe that Kosovo can be granted full independence, why then should we deny it to Abkhazia and South Ossetia? I am not speaking about how Russia will act. However, we know that Turkey, for instance, has recognized the Republic of Northern Cyprus…I do not want to say that Russia will immediately recognize Abkhazia and South Ossetia as independent states, but such precedent does exist.” See http://www.rferl.org. The Russian President also announced a possibility of vetoing any eventual decision by the UNSC recognizing the independence of Kosovo. See Interview with Vladimir Putin, The Financial Times, September 10, 2005, http://www.ft.com/cms/s/76e205b2–40e5–11db-827f-0000779e2340.html.Google Scholar

13 Although the President of the Russian Federation announced that Russia would use its veto should other permanent members of the UNSC move to recognize the independence of Kosovo, the experience of the 1990s ex-Yugoslav wars shows that, at the end of the day, Russia will, albeit grudgingly, align with the position of the West. Whether this will reoccur in the case of the independence of Kosovo remains to be seen. Arguably, Russia's negotiating position vis-à-vis the US and the rest of NATO is more powerful today than it was in the 1990s.Google Scholar

14 Murphy, Sean D., Humanitarian intervention: United States in an Evolving World Order, 11–12 (1996).Google Scholar

15 Confirmed in the International Court of Justice (hereinafter ICJ) ruling in the Corfu Channel Case (1949) and Case Concerning Military and Paramilitary Activities In and Against Nicaragua (1986); http://www.icj-cij.org.Google Scholar

16 The Danish Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects (December 7, 1999).Google Scholar

17 Murphy, , supra note 14, at 287–288; Ruth Gordon, Humanitarian Intervention by the United Nations: Iraq, Somalia, and Haiti, 31 Texas International Law Journal 48 (1996); Guicherd, Catherine, International Law and the War in Kosovo, 41 Survival 40 (1999).Google Scholar

18 The Contact Group is composed of the United States, the United Kingdom, France, Germany, Italy, and Russia. It was first created in response to the war and the crisis in Bosnia in the early 1990s. The Contact Group includes four of the five Permanent Members of the UN Security Council and the countries that contribute the most in troops and assistance to peace-building efforts in the Balkans. Representatives of the EU Council, the EU Presidency, the European Commission and NATO generally attend Contact Group meetings.Google Scholar

19 S.C. Res. 1160 (March 31, 1999).Google Scholar

20 S.C. Res. 1199 (September 23, 1998).Google Scholar

21 Id.Google Scholar

22 Tesón, Fernando, Humanitarian Intervention: An Inquiry into Law and Morality 173–174 (1997).Google Scholar

23 Simma, Bruno, NATO, the UN and the Use of Force: Legal Aspects, 10 EJIL 1–22 (1999); Cassese, Antonio, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 EJIL 23–30 (1999); Antonio Cassese, A Follow-up: Forcible Humanitarian Countermeasures and Opinio Necessitatis, 10 EJIL 791–800 (1999).Google Scholar

24 Simma, supra note 23, at 3.Google Scholar

25 Vienna Convention on the Law of Treaties art. 53, 1155 U.N.T.S. 331.Google Scholar

26 Simma, supra note 23, at 3.Google Scholar

27 Id. at 2.Google Scholar

28 Id. Some authors disagree on this factual point, arguing that “it is not certain” that the actions of the Serbian armed forces and police did not amount to genocide under the 1948 Convention. See Comment of Kai Ambos in NATO, the UN and the Use of Force: Legal Aspects, http://www.ejil.org/journal/Vol10/No1/coma.html. With the benefit of hindsight, it appears that the media reports at the time grossly exaggerated the level of violence. See Erlanger, Steven, Early Count Hints at Fewer Kosovo Deaths, N.Y. Times, 1999, at A6. The total number of Albanian dead is generally claimed to be around 10,000 although several foreign forensic teams were unable to verify the exact amount. See Ball, Patrick, Betts, Wendy, Scheuren, Fritz, Dudukovich, Jana & Asher, Jana (eds.), Killings and refugee flow in Kosovo March-June 1999, A Report to the International Criminal Tribunal for the Former Yugoslavia, (January 3, 2002). The International Criminal Tribunal for the former Yugoslavia, in its cases against Serbian political and military officials, has yet to decide whether the actions of the Serbian police in Kosovo amounted to genocide.Google Scholar

29 See, e.g., S.C. Res. 794 (December 3, 1992) on Somalia; numerous S.C. resolutions related to Bosnia; S.C. authorization for the intervention of the Economic Community of West African States (ECOWAS) in Liberia and Sierra Leone, etc.Google Scholar

30 Simma, supra note 23, at 4.Google Scholar

31 Id. at 5.Google Scholar

32 Littman, Mark, Kosovo: Law and Diplomacy, Centre for Policy Studies 4 (1999).Google Scholar

33 Simma, supra note 23, at 6.Google Scholar

34 Id. at 10.Google Scholar

35 Id.Google Scholar

36 Id. at 8.Google Scholar

37 S.C. Res. 1244 (June 10, 1999) ended the war in Kosovo and established an international military and civilian presence to govern the Province.Google Scholar

38 Simma, supra note 23, at ^14. Google Scholar

39 Kinkel, Klaus, German Foreign Minister at the time, Comments during Parliamentary Debate on the Eve of the War in the Deutscher Bundestag (October 16, 1998), in Plenarprotokoll 13/248 at 23129. Most NATO governments or parliaments have engaged in a political and policy oriented assessment of the intervention in Kosovo. See Littman, supra note 23; Gareth Evans & Mohamed Sahnoun, The Responsibility to Protect, International Commission on Intervention and State Sovereignty (2001).Google Scholar

40 D'Alema, Massimo, Kosovo: Intervista di Federico Rampini, 58 (1999).Google Scholar

41 Id. at 145.Google Scholar

42 Evans, & Sahnoun, , supra note 39, at 2.Google Scholar

43 Id. at 2.Google Scholar

44 Cassese, supra note 23, at 24–25.Google Scholar

45 Id. at 27.Google Scholar

46 Id. at 30.Google Scholar

47 Id. at 27.Google Scholar

48 Id.Google Scholar

49 Id. Of course, the intervention would have to be proportionate to the breaches of human rights on the ground and would, like any military conflict, need to respect international norms regulating the use of force. Having this condition in mind, many international legal scholars would consider NATO's intervention in the FRY in 1999 to be illegal. As Littman argued in the case that the FRY brought to the ICJ against the NATO counties, the latter preferred using procedural caveats to contest the claims, rather than engaging with the substance of the case brought against them. “…[T]he UK could have waived this objection and accepted the Yugoslav challenge to have the legality of the bombing tested before the Court. The Government thus deprived the British public of the opportunity of an authoritative decision on this crucial matter…Given the weight of opinion and legal authority against the NATO position, the paucity of evidence in its favour and the reluctance of the UK to test its view before the ICJ, it is difficult to avoid the conclusion that the NATO action was illegal.” See Littman, supra note 23, at 6–7. Moreover, numerous international human rights organizations judged certain aspects of the NATO intervention as being in breach of international legal norms related to situations of war and military conflict. For example, Kenneth Roth, Executive Director of Human Rights Watch, stated, “Once it made the decision to attack Yugoslavia, NATO should have done more to protect civilians. All too often, NATO targeting subjected the civilian population to unacceptable risks.” See http://www.hrw.org/press/2000/02/nato207.htm.Google Scholar

50 The International Commission on Intervention and State Sovereignty was founded by the Government of Canada, together with a group of major foundations in 2000.Google Scholar

51 International Development Research Centre, The Responsibility to Protect 43 (2001) (emphasis mine).Google Scholar

52 It is even doubtful that the S.C. (assuming no Russian or Chinese veto) has legal basis to separate territory from a sovereign country. This has no precedent outside of the colonial context, where the application of a people's right to self-determination remains unambiguous. Still, regarding the recognition of independence for Kosovo by the entire S.C., it would be difficult to contest such an outcome bearing in mind “the doctrine of effectivity” (which besides other elements argues that recognition of a new state by other countries would validate the separation. See 2 S.C.R. 217 (1998), reference regarding secession of Quebec. In the event that both Russia and China endorse a S.C. Resolution amounting to the recognition of the independence of Kosovo, the disruptive effect of such a precedent would be somehow mitigated. Hence, one could argue that in some sense international law would thus remain on an evolutionary course towards a new geopolitical reality, avoiding a slide into an outright revolution.Google Scholar

53 International Development Research Centre, supra note 51, at 44. The report develops the concept of temporarily suspended sovereignty even further in the theoretical sense: “Sovereignty issues necessarily arise with any continued presence by the intervener in the target country in the follow up period. Intervention suspends sovereignty claims to the extent that good governance – as well as peace and stability – cannot be promoted or restored unless the intervener has authority over a territory. But the suspension of the exercise of sovereignty is only de facto for the period of the intervention and follow-up, and not de jure.”Google Scholar

54 S.C. Res. 1244 (June 10, 1999).Google Scholar

55 Id.Google Scholar

56 Id.Google Scholar

57 Id.Google Scholar

58 Interim Agreement for Peace and Self-Government In Kosovo, February 23, 1999.Google Scholar

59 D'ALEMA, supra note 40, at ^24. Google Scholar

60 A term somewhat difficult to translate, one could argue that narodnost reflects the term national minority in European constitutionalism. In fact, while each nation had a constituent status (Serbs, Croatians, Muslims, Montenegrins, Macedonians and Slovenians) in SFRY, other nationalities, for example, Albanians and Hungarians, had a different status in the Constitution etc. Their constitutional status was somewhat lower, at least as far as the constitutional provision of the right to secede was concerned.Google Scholar

61 1974 Ustav Socijalistićke Federativne Republike Jugoslavije [Constitution] (Yugoslavia), http://www.arhiv.sv.gov.yu.Google Scholar

62 Guidelines on the Recognition of New States, 31 ILM 1486 (1992).Google Scholar

63 Id. at 1500.Google Scholar

64 Kumbaro, Dajena, The Kosovo Crisis in an International Law Perspective: Self-Determination, Territorial Integrity and the NATO Intervention, The Report for the NATO Office of Information and Press, 37, June 16, 2001.Google Scholar

65 See Roland Rich, Recognition of States: The Collapse of Yugoslavia and the Soviet Union, 4 EJILS (1993). While the author does not contest the decision of the Badinter Commission in the case of Kosovo, his argument in general runs along the lines suggested by the opening sentence: “According to what is probably still the predominant view in the literature of international law, recognition of states is not a matter governed by law but a question of policy.” On the other hand, Danilo Türk defends the importance of legal reasoning in general and the decision of the Badinter Commission in particular. See Danilo Türk, Recognition of States: A Comment, 4 EJILS (1993). See also Peter Radan, The Break-up of Yugoslavia and International Law (2002) and Suzanne Lalonde, Determining Boundaries in a Conflicting World: The Role of Uti Possidetis (2002).Google Scholar

66 “Three years after the entry into force of this Agreement, an international meeting shall be convened to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people, opinions of relevant authorities, each Party's efforts regarding the implementation of this Agreement, and the Helsinki Final Act, and to undertake a comprehensive assessment of the implementation of this Agreement and to consider proposals by any Party for additional measures.”Google Scholar

67 Here one is advised to go back to the opinion of the Supreme Court of Canada on the legality of the secession of Quebec (in case of a successful referendum) under international and Canadian municipal law. Asked whether unilateral secession is possible under the Canadian Constitution, the Court answered that “Self determination was expected to be exercised within the framework of existing states” and that Federal government “is obliged to negotiate” secession with Quebec. Thus secession was not to trigger independence automatically. See 2 S.C. Res. 217 (1998) reference regarding secession of Quebec.Google Scholar

68 See Zoran Oklopcic, What's in a Name: Five theses on the Self-Determination of Peoples, http://transatlanticassembly.blogspot.com/2006_02_01_transatlanticassembly_archive.html. See also Karen Knop, Diversity and Self-Determination in International Law, CUP (2002).Google Scholar

69 See Cahn, supra note 9.Google Scholar

70 International Crisis Group, Southern Serbia: In Kosovo's Shadow, 43 Europe Briefing (2006). “Southern Serbia's Albanian-majority Presevo Valley is a still incomplete Balkan success story. Since international and Serbian government diplomacy resolved an ethnic Albanian insurgency in 2001, donors and Belgrade have invested significant resources to undo a legacy of human rights violations and improve the economy. Tensions are much decreased, major human rights violations have ended, the army and police are more sensitive to Albanian concerns and there is progress, though hesitant, in other areas, such as a multi-ethnic police force, gradual integration of the judiciary, and Albanian language textbooks. Ethnic Albanians appear increasingly intent on developing their own political identity inside Serbia and finding a way to cohabit with Serbs, something that should be encouraged and supported.” See also International Crisis Group, Peace in Presevo: Quick fix for a long term solution?, Europe Report 116 (August 10, 2001). In this report they argued, referring to the Serbian-NATO police action against the Albanian rebels, that “Operating from the Ground Safety Zone, the UCPMB attacked police and other state targets with virtual impunity… NATO dashed rebel hopes by taking Belgrade's side. The alliance negotiated a phased reoccupation of the GSZ by FRY forces that occurred between 14 March and 31 May 2001. Contrary to many expectations, the reoccupation went smoothly.”Google Scholar

71 Eide, Kai, Special envoy of the Secretary General for the Comprehensive review of Kosovo, Comprehensive Review of the Situation in Kosovo in its Report (June 13, 2005), http://operationkosovo.kentlaw.edu/kai-eide-report-N0554069.pdf#search=%22Kai%20Eide%20report%22: “with regard to the foundation of a multiethnic society the situation is grim.” See also Human Rights Watch, Failure to Protect: Anti-Minority Violence in Kosovo, March 2004, 16 (July 2004). See also Cahn, supra note 9.Google Scholar

72 The Contact Group, Statement on the Future of Kosovo (January 31, 2006) alludes to the notion of ‘disowned sovereignty’: “Ministers recall that the character of the Kosovo problem, shaped by the disintegration of Yugoslavia and consequent conflicts, ethnic cleansing and the events of 1999, and the extended period of international administration under UNSCR 1244, must be fully taken into account in settling Kosovo's status. UNSCR 1244 remains the framework for the ongoing status process…Ministers look to Belgrade to bear in mind that the settlement needs, inter alia, to be acceptable to the people of Kosovo. The disastrous policies of the past lie at the heart of the current problems.” See http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1007029391638&a=KArticle&aid=1136909612032. While it is clear that certain member states of the contact group share a political belief that Serbia, due to the past violence of Milosevic's regime, lost its legitimacy to govern Kosovo, their statement would have to be a great deal more explicit before presuming any legal import. It is unlikely that the Contact group would ever reach agreement on such a position.Google Scholar

73 Ahtisaari's chief spokesperson Hua Jiang told that Ahtisaari would not apologise for his statements because he not referred to the collective guilt of the Serbian people. “The statement was taken out of context and poorly presented. He never mentioned the collective guilt of the Serbian people. Ahtisaari spoke of the historical legacy, that every nation should have the courage to face its own past. There is no reason for Ahtisaari to offer an apology and that is not going to happen.” See http://www.b92.net/eng/news/politics-article.php?yyyy=2006&mm=08&dd=31&nav_id=36405.Google Scholar

74 Kupchan, Charles A., Independence for Kosovo, 84 Foreign Affairs (2005).Google Scholar

75 Recently, the UK House of Commons’ Foreign Affairs Committee issued a report entitled “The Western Balkans” on February 23, 2005. This report suggests that independence might be the most realistic solution for Kosovo, but is much more prudent as far as the strategy of reaching that goal is concerned. Based on an interview with the Norwegian ambassador to NATO, Kai Eide (see supra note 63), the report predicted that, if the final status of Kosovo is not resolved soon, Albanians could plunge into violence against the Serbs and other minorities one more time. It was argued in the Report: “final status…could see an exodus of the Serbian minorities heading back towards Belgrade.” One UK MP quoted in the report argued that “we are damned if we do and damned if we do not” resolve the status of Kosovo. Misha Glenny – one of the contributors to the report and an expert on the region's history and politics – argues that “going [to Belgrade] now and telling Serbian politicians that they have to support the idea of a final status which is likely to result in independence of Kosovo is turkeys voting for Christmas. It is no good asking Serbian politicians to do that.” Glenny is convinced that this would bring about the electoral rise of the extreme-nationalist forces in Serbia, an outcome that could possibly have disastrous effects on the region as a whole. See http://www.publications.parliament.uk/pa/cm/cmfaff.htm.Google Scholar

76 See Kissinger, Henry, A World Restored (1957) for a definition of a status quo and revolutionary power.Google Scholar

77 Some proposals on the future status of Kosovo suggested a similar outcome. See International Commission on the Balkans, The Balkan in Europe's Future, April 12, 2005, http://www.balkan-commission.org. The main argument of the Report boils down to the strategy of independence for Kosovo in stages, whereby Kosovo would be granted “independence without sovereignty” in 2005/2006 meaning that Kosovo would legally be a protectorate of the UN (or, preferably, the EU). In the following stage, the report calls for “guided sovereignty” where Kosovo starts accession negotiations with the EU. Finally, the Province would move towards full (and the report adds “shared”) sovereignty, which would be reached only at the moment when Kosovo enters the EU. The principal difference between the proposal of this article and the proposal of the aforementioned report is the readiness of the International Commission to deprive Serbia of sovereignty over Kosovo without its prior consent.Google Scholar

78 See Janjic, Dusan, Srdjan Cvijic, Nenad Djurdjevic & Danijela Nenadic, White Paper: Why is Decentralization Important for Kosovo status talks?, Nato Parliamentary Assembly Special Seminar – Kosovo: Decentrlization as the key to future status negotiations, October 28, 2005, http://www.natopa.int/Default.asp?SHORTCUT=820, for a proposal on the future internal organization of Kosovo that could present sound basis for the effective protection of minorities.Google Scholar