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Published online by Cambridge University Press: 28 February 2017
* Steven Hill and Paul Williams did not submit remarks for the Proceedings.
1 MSNBC, Kosovo Declares Independence from Serbia (Feb. 18, 2008), available at http://www.msnbc.msn.com/id/23203607 (last visited June 3, 2008).
2 CNN, Serbia Steps Up Anti-Kosovo Pressure (Feb. 19, 2008), available at http://www.cnn.com/2008/World/europe/02/18/kosovo.independence/index.html (last visited June 3, 2008).
3 Brown, Bartram S., Human Rights, Sovereignty, and the Final Status of Kosovo, 80 Chi.-Kent L. Rev. 235, 238 (2005)Google Scholar.
4 The 1974 SFRY Constitution granted Kosovo the status of an autonomous province within the country’s federal structure. Gruda, Zejnullah, Some Key Principles for a Lasting Solution of the Status of Kosovo: Uti Possedetis, The Ethnic Principle, and Self-Determination, 80 Chi.-Kent L. Rev. 353, 387 (2005)Google Scholar. Under the terms of the 1974 Constitution, Kosovo had the following rights: the right to adopt and change its constitution; the right to adopt laws; the right to exercise constitutional judicial functions and to have a constitutional court; judicial autonomy and the right to a Supreme Court; the right to decide on changes of its territory; the right to ratify treaties concluded with foreign states and international bodies; and the right to have independent organs and ministries within the local government. Id.
5 Brown, supra note 3, at 263 (noting that amendments to Serbia’s constitution in 1989 and 1990 negated the Kosovar autonomy).
6 ver Hasani, En, Self-Determination Under the Terms of the 2002 Union Agreement Between Serbia and Montenegro: Tracing the Origins of Kosovo’s Self-Determination, 80 CHI.-KENT L. Rev. 305, 320 (2005)Google Scholar (noting that the refusal of Serbia to agree to the Rambouillet Accords caused the Nato bombing campaign); see also Brown, supra note 3, at 240.
7 See Interim Agreement for Peace and Self-Government in Kosovo, Feb. 23, 1999, UN Doc. S/1999/648 (June 7, 1999), available at http://www.state.gov/www/regions/eur/ksvo_rambouillet_text.html [hereinafter Rambouillet Accords]. Moreover, Security Council Resolution 1244 directly references the Rambouillet Accords for the purpose of determining Kosovo’s future status. S.C. Res. 1244, UN SCOR 54th Sess., 4011th mtg. ¶11(e), UN Doc. S/RES/1244 (1999) [hereinafter Resolution 1244]. Thus, Resolution 1244 represents the legal foundation upon which “the civilian and military branches of the international administration in Kosovo are based.” Hasani, supra note 6, at 323; see also Gruda, supra note 4, at 356. Under Resolution 1244, security for Kosovo was provided by a multilateral force (KFOR), and it was administered by the United Nations Mission in Kosovo (UNMIK). For a detailed discussion of the UN administrative regime over Kosovo, see Hasani, supra note 6, at 323-25.
8 MSNBC, Kosovo Declares Independence from Serbia, Feb. 18, 2008, available at http://www.msnbc.msn.com/id/23203607 (last visited June 3, 2008).
9 As of February 18, 2008, the United States, the United Kingdom, France, and Belgium had all expressed support for the “new state of Kosovo.” Id. Note, however, that several states expressed their opposition to Kosovo’s independence, including Spain, Russia, China, Indonesia, and Sri Lanka. Kulish, Nicholas and Chivers, C.J., Kosovo is Recognized but Rebuked by Others, N.Y. Times Google Scholar, available at http://www.nytimes.com/2008/02/19/world/europe/19kosovo.html (Feb. 19, 2008) (last visited May 12, 2008) [hereinafter “Kulish and Chivers”].
10 Reference re Secession of Quebec, [1998] 2 S.C.R. 217; see also Gruda, supra note 4, at 366 (noting that the right to self-determination belongs to “peoples”).
11 The 1974 SFRY Constitution specifically granted autonomous status to Kosovo, which then became a province operating in the federal structure of the former Yugoslavia. Compare the general content of the right to internal self-determination, which includes the right of people to determine their political and social regime, the right of people to freely dispose of their natural resources and pursue economic development, and the right to solve all matters under domestic jurisdiction, Gruda, supra note 4, at 381, with the rights conferred on the Kosovar Albanians by the 1974 SFRY Constitution, which included, inter alia, the right to adopt laws and a constitution, and the right to have judicial autonomy and a Supreme Court, id. at 387. Thus, it is clear that the 1974 SFRY Constitution enabled Kosovo and its citizens to exercise full internal self-determination.
12 It is interesting to note that most of the western countries that recognized Kosovo as a new state after its declaration of independence in February 2008 did not invoke the legal theory of secession to justify Kosovar independence. This suggests that most of such countries did not view the Kosovar separation as an internationally legal secession, but rather as a politically justified maneuver.
13 Montevideo Convention on the Rights and Duties of States, Art. 4, Dec. 26, 1933, 165 L.N.T.S. 19.
14 Perritt, Henry H. Jr., Final Status for Kosovo, 80 Chi.-Kent L. Rev. 3, 14 (2005)Google Scholar.
15 Id. at 8 (noting that in March 2004, thousands of Kosovar Albanians rioted while “focusing their rage on Serb ‘enclaves’ and religious symbols”).
16 In fact, Serbs in the north of Kosovo live predominantly in the town of Mitrovica, which is a “microcosm for all of Kosovo,” because its “divisions and unresolved political status reinforce its social and economic crisis and fuel ethnic tensions.” Perritt, supra note 14, at 26 (describing the so-called Mitrovica problem). Because it is unclear that the minority Serbs’ right to internal self-determination will be respected within the new state of Kosovo, scholars have advocated the partition of Kosovo along the “Mitrovica line,” whereby the northern part of Mitrovica and the territory north of the IBAR River would become part of Serbia, and the territory south of the IBAR River would remain part of the independent state of Kosovo. Williams, Paul R., Earned Sovereignty: The Road to Resolving the Conflict Over Kosovo’s Final Status, 31 Denv. J. Int’l L. & Poly 387, 405 (2003)Google Scholar.
17 Ash, Timothy Garton, This Dependent Independence is the Least Worst Solution for Kosovo, Guardian Google Scholar, available at http://www.guardian.co.uk/world/208/feb/21/kosovo (Feb. 21, 2008) (noting that leaders in South Ossetia and Transnistria “are muttering about following the example of the American-backed Kosovans,” and that “Basque and Catalan separatists take note”).
18 Nicholas Kulish and C.J. Olivers, supra note 9 (noting that separatist leaders in Abkhazia and South Ossetia, two Georgian provinces, have announced their intention to seek recognition as independent states, backed by Russia).
19 In fact, scholars have noted that the desire to avoid encouraging secessionist groups throughout the world from being able to rely on the Kosovo precedent might have driven the international community to deny Kosovo independence and statehood until now. See, e.g., Hasani, supra note 6, at 321 (arguing that the Belgrade regime may have been given “assurances regarding the unconditional inviolability of Serbia’s borders” in the 1990s in light of realpolitik concerns that considered “an international desire to avoid encouraging secessionist movements in Northern Ireland, Tibet, Chechnya, Quebec, Bosnia, and Macedonia”).
20 Gruda, supra note 4, at 353-59.
