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

473 Pages·2011·3.61 MB·English

by  James Summers

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,
microfilming, recording or otherwise, without written permission from the Publisher.
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Drive, Suite 910, Danvers ma 01923, usa.
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
Editor’s 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 Kosovo’s Unilateral Declaration of Independence 53
Chapter 2 Another Frozen Confl ict:
Kosovo’s 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 Kosovo’s Independence:
Re-Examining the Principles Established by the EC Badinter
Commission in Light of the ICJ’s 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. Jovanović
Chapter 12 The Impact of the ‘Kosovo Precedent’ on
Self-Determination Struggles 375
Snežana 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 Rodríguez-Izquierdo Serrano
Index 445
Editor’s 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 Kosovo’s status, but also raised important legal questions about the nature of in-
ternational territorial administration, statehood, self-determination and the rights of
minorities. Th e 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. Th is dis-
pute continues. Th e Opinion has not had a dramatic eff ect on the number of states
recognising Kosovo, which on the 18 November 2010 was 72 UN member states. Th e
Kosovo issue remains one that may well take years to resolve.
Th is book draws from papers presented at the conference held at the University of
Lancaster, “Th e 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 Confl ict: Kosovo’s Unilateral Declaration and International
Law”, at the Lancaster Conference, passed away in July 2010 after a short illness. His
uncompleted draft has been fi nalised by Colin Warbrick and my thanks go to Colin
and Kaiyan’s wife Dhun for their assistance with his chapter. Th is book is dedicated
to Kaiyan’s memory.
James Summers
Lancaster 2010