A last resort settlement

and the Convention against Torture.⁴⁶⁵ On the other hand, while some human rights concerns remained to be addressed post-1999, the Serbian authorities were no in the position to threaten the existence of Kosovo Albanians with the use of force. However, it must not be neglected that the following years were characterized by inter-ethnic violence in 2000 and 2004.⁴⁶⁶ Today, the ethnic tensions are particularly present in the Serbian dominated North Mitrovica of Kosovo, and since it borders with Serbia, its inhabitants almost live entirely under Belgrade’s authority. The bridge of the Ibar River divides Serbian North Mitrovica from the Albanian South Mitrovica. Hence, violence still occurs when the two ethnic groups clash. In 2004, three Albanians boys were allegedly drowned in the Ibar River by Serbs, which quickly resulted in a demonstration with former KLA fighters.⁴⁶⁷ Secondly, the closing of the bridge in 2007 brought the Kosovo Police in an exchange of open fire with the Albanians who demonstrated against the closure.⁴⁶⁸ The Serbian population in Mitrovica has rejected any formal integration with Kosovo, and despite the international presence with UNMIK, they continue to adhere to the central government in Belgrade, instead of Pristina. On the account of this, one may argue that Kosovo, at this time, was not eligible to a right of external self-determination, as there were no human rights violations that threatened their existence, despite ethnic tensions.

Secondly self-governance was being re-established under the auspices of UNMIK. A dissenting Judge opinioned the situation after the ICJ AO that “international law should not allow an ethnic group to break away from its state on the basis of a wish to independence.”⁴⁶⁹ This recalls the same interpretation from the Åland Islands case, wherein it was decided that a wish without a legal basis could foster more instability than restoring stability. However, can the same be applied to the Kosovo Albanians, that it was merely an expressing of a wish to become independent. The counterargument or the justification of the UDI in 2008 is based on the fact that Kosovo’s right to remedial secession was more a delay of years of oppression,⁴⁷⁰ and international efforts. It is arguable that the international community aimed to find a solution of internal arrangements, rather than endorsing a right to external self-determination.

465 UNMIK Regulation 1999/24, On the Law Applicable in Kosovo. UNMIK/REG/1999/24 (12 December 1999) section 1.3. See also: UNMIK Regulation 2000/59, Amending UNMIK Regulation No. 1999/24 on the Law Applicable in Kosovo, UNMIK/REG/2000/59 (27 October 2000).

466 Amnesty International (2014/2015) (available at:

https://www.justice.gov/sites/default/files/pages/attachments/2015/05/19/amnesty-international_2014_serbia.pdf) p. 319.

467 Summers, supra note 23, p. 35.

468 Amnesty International, supra note 467.

469 Dissenting Opinion of Judge Abdul Koroma, 22 July 2010, p. 468, para. 4.

470 Vidmar, supra note 444, p. 817.

But when all attempts at negotiating an internal settlement, between Belgrade and Pristina, have failed, secession would be a last resort.⁴⁷¹

The political process of a final status was enhanced in 2005, where the Contact Group led by the US, France, Italy, Germany, UK and Russia, proposed the settlement be based on the Ten Guiding Principles. It reaffirmed human rights, multi-ethnic access to institutions, unchangeable frontiers, and an international supervision of the implementation of the settlement.⁴⁷² It also requested authorities in Belgrade to encourage Serbs of Kosovo, North Mitrovica, to participate in Kosovo institutions,⁴⁷³ and reaffirmed the necessary endorsement by the UNSC. After fifteen rounds of negotiations in 2006, it was emphasized that Kosovo was

”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 which must be taken into account, when negotiating a status plan”.⁴⁷⁴ However due to division within the Group and with lack of Russian support, the Special Envoy, Athisaari, was called in to propose a settlement.⁴⁷⁵

The Athisaari Proposal ascribed statehood attributes to Kosovo in its plan. His arguments of independence relied on the fact that “Kosovo had been governed in complete separation from Serbia for eight years”, which meant that a return to Serbian rule would not be

“acceptable to the overwhelming majority of the people of Kosovo”.⁴⁷⁶ This reiterates the remedial approach that the people are the ultimate sovereign, and a state must serve the consent and will of its people.⁴⁷⁷ This is also in line with Final Act and the state practice in which Canada guaranteed the rights of all its citizens by expressing their will. However, the Proposal was not endorsed by the UNSC as Russia indicated to utilize its veto power.⁴⁷⁸

When the Athisaari Proposal failed to be endorsed, the Special Envoy stated: “it is my firm view that the negotiations’ potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted”.⁴⁷⁹ But the UNSG established another round of negotiations, with the Troika (EU, Russia and the US) as mediators.⁴⁸⁰ This initiative also proved insufficient without achieving an agreement, due to old positions. The UNSG viewed this

471 Tim Judah, Kosovo, What Everyone Needs to Know, 2008. p. 141.

472 Contact Group, supra note 270, preamble, principles 1, 3, 4, 6 and 10.

473 ibid.

474 Kosovo Contact Group Statement (31 Januar 2006) (available at:

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/en/declarations/88236.pdf). para. 2.

475 Summers, supra note 23, p. 38.

476 UN Security Council 2007/168, supra note 382, paras. 6-7.

477 Buchanan, supra note 429 p. 354.

478 New York Times, supra note 385.

479 UN Security Council 2007/168, supra note 382, para. 3.

480 United Nations Security Council S/2007/723, Letter dated 10 December 2007 from the Secretary-General to the President of the Security Council. S/2007/723 (4 December 2007).

worrisome, “events on the ground could take a momentum of their own, putting at serious risk the achievements and legacy of the UN in Kosovo”.⁴⁸¹ It is arguable that when all diplomatic, peaceful and consensual attempts⁴⁸² had been exhausted to settle the political status, and without an UNSC agreement, the necessity of terminating the interim administration and declare independence was foreseeable. This was even supported by the UNSG in 2007 that “if Kosovo's future status remains undefined, there is a real risk that the progress achieved by the United Nations and the Provisional Institutions in Kosovo can begin to unravel”.⁴⁸³ This was crucial as to prevent the conflict from remaining frozen for too long, in which the UDI became justified, as an exceptional measure of last resort.⁴⁸⁴ Thus, challenges of settling the dispute to find a compromise was both reflected inside and outside the UNSC, herein between Kosovo and Serbia. The Troika Talks reported to the UNSG in 2007 that, ”the parties were unable to reach an agreement on the final status of Kosovo. Neither party was willing to cede its position on the fundamental question of sovereignty over Kosovo”.⁴⁸⁵ The UNSC slowly realized that an endorsed solution was near impossible, since the main parties were unwilling to agree. In addition, the UDI reassured implementation of the Ahtisaari Proposal, which would be ‘in conformity with principles of justice and international law’.⁴⁸⁶ According to the Proposal’s art.

1, there would be “full respect for the rule of law”⁴⁸⁷ and further “respect for the highest level of internationally recognized human rights and fundamental freedoms”,⁴⁸⁸ while subjected to international supervision. Considering that self-determination does not grant a legal right to secession, it may be argued that in the case of Kosovo, the international community was ready to endorse independence as a last resort,⁴⁸⁹ in the form reflected in the Ahtisaari Proposal.

According to the remedial approach, the UDI is justified, as other means of settling the dispute proved a lack of success. It must thus be established that the international community was compelled to the same understanding and acceptance of Kosovo’s right to secession.

Nonetheless, the characteristics of Kosovo was “a unique case” that demanded “unique

481 United Nations Security Council S/2007/768, Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo. S/2007/768 (19 December 2007) para. 33.

482 CSCE: Final Act of Helsinki, supra note 98, Principle I.

483 United Nations Security Council 2007/395, Letter dated 26 March 2007 from the Secretary General addressed to the President of the Security Council, S/2007/395 (26 March 2007), para. 33.

484 Ralph Wilde, “Self-Determination, Secession and Dispute Settlement after Kosovo Advisory Opinion”, Leiden Journal of International Law, vol. 24, no. 1 (2011) p. 151.

485 UN Security Council S/2007/723, supra note 481, para. 2.

486 Charter of the UN, supra note 2, art. 1.

487 Ahtisaari, supra note 372, art. 1.1.

488 Ahtisaari, supra note 372, art. 1.2.

489 Walter, supra note 331, p. 18.

solutions”, to which its course of action, and its reflection of the remedial approach “does not create a precedent for other unresolved conflicts”.⁴⁹⁰

Conclusively, it is determined that secession is justified when all attempts at negotiating an internal settlement have failed. This was predominantly due to the resistance from Serbia and Russia. However, some have argued that the Serbian administration in 2008 was more willing to negotiate and accommodate Kosovo with the right of internal self-determination,⁴⁹¹ as the ubi jus ibi remedium, instead of secession. Kosovo perceived independence as the only solution, and thus accepted nothing less than independence.⁴⁹² However, it is important to unfold the circumstances offered by the means of internal self-determination by Serbia. In the

‘Plan for the Political Solution in Kosovo and Methodija’, Kosovo was offered a high level of autonomy, “more than autonomy, but less than independence”.⁴⁹³ On the other hand, a legal condition was that the Kosovo Serb municipalities, herein North Mitrovica, would be “an autonomy within an autonomy”⁴⁹⁴. This arguably indicated that being autonomous within Kosovo, would lead to another scenario of implementing policies in favor of the Serbs, rather than ensuring the same level of autonomy for everyone. Pristina rejected this, as Mitrovica is a part of Kosovo⁴⁹⁵ and would lead to changed frontiers, and breach the principle of uti possidetis juris, which the international community would be unsupportive of.

Lastly, considering Kosovo to qualify as a hard case under international law may stimulate the development of new rules, and strengthen the right to external self- determination.⁴⁹⁶ State practice has further recognized the possibility of a right to remedial secession in exceptional cases of human rights violations, which has been accounted for in judicial cases.⁴⁹⁷ On the other hand, it has been stated that Kosovo, as a special case, poses no precedents. Secondly, without the mere practice of such right, it is hard to establish it as a customary rule, since opinio juris, the subjective element to which state possess the belief that it is acting on the basis of a legally binding rule, is lacking. The latter is evident as secession is a neutrality principle under international law. It was further expressed by the ICJ in the Nicaragua case, that there is a need of a more direct expression of opinio juris, than a mere

490 United Nations Security Council, Letter dated 26 March 2007 from the Secretary-General addressed to the President of the Security Council, S/2007/168 (26 March 2007) paras. 1-3.

491 Jabar, supra note 365, p. 942.

492 Ker-Lindsay, supra note 11, p. 22.

493 ibid.

494 ibid.

495 Ker-Lindsay, supra note 11, p. 22.

496 Krieger, supra note 21, preface.

497 Jaber, supra note 365, p. 941.

reference from state practice.⁴⁹⁸ It must therefore be determined that the right to external self- determination has not been established as a customary law. Nonetheless, the right remains highly relevant and thus prone to development, since secessionist movements are present today.

In conclusion, the remedial approach does not advocate secession as a general right;

rather a right to be invoked when human rights violations and the denial of internal self- determination are present and no peaceful solutions are evident. The last condition has been proved to take place prior to the UDI. Other proposals of settlement and negotiations were found insufficient, which posed secession as the only remedy available, and the UDI provided a solution of last resort,⁴⁹⁹ since other initiatives failed. The UDI proved to conform to general principles of international law and the UN Charters art. 1(2) and 55, although the latter refers to a decolonization context, it stresses on peace and stability. It is thus arguable that if the UDI was predicted to increase tensions, then self-determination would be disregarded, as its objective would raise possibilities of conflicts between states.⁵⁰⁰ The UDI has proved to be endorsed by a large portion of the international community, since over 100 sovereign states have recognized Kosovo’s independence.⁵⁰¹ This expresses that it was the solution to foster stability than instability in the international relations between states.

498 Military and Paramilitary Activities Nicaragua, (Nicaragua v. United States) Judgment, International Court of Justice, 27 June 1986, para. 207.

499 Written Statement by the Confederation of Switzerland, supra note 433, para. 68.

500 Cassese, supra note 7, p. 43.

501 Kosovo Thanks You, supra note 313.