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⁴ Tierney, Stephem, Constitutionil Law and National Pluralism 293-99 (2004); Tierney, Stephen, Direct Democracy in the United Kingdom: Reflections from the Scottish Independence Referendum (forthcoming Public Law, 2015).Google Scholar

⁵ For further discussion see Tierney, Stephen, Constitutional Referendums: The Theory and Practice of Republican Deliberation (2012).Google Scholar

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¹³ Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, para. 112 (Can.) [hereinafter Re Secession].Google Scholar

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²² Five states emerged from the dissolution of the Sodalist Federal Republic of Yugoslavia (SFRY). On 27 April 1992 two of the six republics of the SFRY—Serbia and Montenegro—formed the Federal Republic of Yugoslavia which was considered by the EC Peace Conference Arbitration Commission to be a new state. Conference on Yugoslavia Arbitration Commission (the Badinter Commission), Opinions on Questions Arising from the Dissolution of Yugoslavia, (1992) Opinion No. 9. The FRY was recognized by member states of the European Community following the Dayton Agreement of 14 December 1995. The other four republics became independent states: Bosnia-Herzegovina, Croatia, Macedonia and Slovenia. In due course Montenegro would itself become independent following a referendum in 2006.Google Scholar

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²⁵ 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 ninety percent ethnic Albanian was the most ethnically homogeneous autonomous unit in the Federal Republic apart from Slovenia, it seemed particularly unjust that Kosovo should be excluded from any possibility of state hoods imply on account of a formal distinction in the 1974 SFRY constitution between republics and autonomous provinces.Google Scholar

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³¹ The Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lesons Learned 4 (2000). This position was also taken by a UK House of Commons Foreign Affairs Committee Report—HC Foreign Affairs Committee Fourth Report, para. 138 (May 23, 2000). For related arguments, see also, Schrijver, Nico, NATO in Kosovo: Humanitarian Intervention turns into Von Clausewitz War, 1 Int'l L. F. 155-59 (1999). Antonio Cassese, Ex Iniuria lus Oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 Eur. J. Int'l L. 23–30 (1999); Sofaer, Abraham, International Law and Kosovo, 36 Stan. J. Int'l L. 4 (2000). See also Schrijver, Nico, NATO in Kosovo: Humanitarian Intervention Turns into Von Clausewitz War, 1 Int'l L. Forum 155-59 (1999); Sofaer, Abraham, Internatami Law and Kosovo, 4 Stan. J. Int'l L. 36 (2000). Or other opinions that consider the NATO bombing of FRY to have been unlawful but which are otherwise sympathetic to NATO's motivations. See Simma, Bruno, NATO, the UN and the Use of Force: Legal Aspects, 10 Eur. J. Int'l L. 1-22 (1999); Glennon, Michael J., The New Interventionism: The Search for a Just International Law, 78 Foreign Affs. 2 (1999).Google Scholar

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³⁴ Id. But this also serves to invite questions a bout the motivations of the powers intervening in the Kosovo crisis. Among those skeptical of the idea that NATO and others were motivated by humanitarian concerns were: NOAM Chomsky, A New Generation Draws the Line: Kosovo, East Timor and the Standards of the West (2001); Hayden, Robert M., Humanitarian Hypocrisy, 8 E. Eur. Const. Rev. 91–96 (1999); Gray, Christine, International Law and the use of Force 36 (2000).Google Scholar

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⁵¹ Id. at para. 91.Google Scholar

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⁵³ In that regard, I agree with the argument offered In Zoran Oklopcic's article in this collection. Zoran Oklopcic The Idea of Early-Conflict Constitution-Making: The Conflict in Ukraine Beyond Territorial Rights and Constitutional Paradoxes, 16 German LJ. 658, 681 (2015).Google Scholar

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⁵⁸ Id. at para. 52.Google Scholar

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