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Kosovo Crisis Inquiry: Memorandum On The International Law Aspects

  • Ian Brownlie and C. J. Apperley


1. This Memorandum has been prepared in accordance with the request of the Foreign Affairs Committee (letter dated 28 July 1999), which request referred to a written memorandum “on the area of international law“.1 In the course of his career as a member of the English Bar, specialising in international disputes, the writer has worked as legal adviser and/or advocate for at least 35 States. In this context it is necessary to point to the fact that, as a part of his professional involvements, he has acted as Counsel and Advocate in the recent proceedings before the International Court of Justice on behalf of Yugoslavia. It is also necessary to stress that the Memorandum represents his own views and that there has been no input from any Government or Government-related organisation.



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1. The material presented was originally prepared for the purpose of providing evidence to the Foreign Affairs Committee of the House of Commons. The work was done in September 1999 and the original Memorandum is dated 6 October 1999. The text now published is identical to the original, subject to some reductions in the quotations and emendations made with the purpose of saving space and in compliance with editorial requests.

2. Hansard, 1 Feb. 1999, col.605.

3. 23 Mar. 1999, the Prime Minister, cols.162–3. 24 Mar., the Deputy Prime Minister: col.483. 25 Mar., the Foreign Secretary: col.538. 25 Mar., the Defence Secretary: cols.614, 617.

4. The relevant statements are as follows: 25 Jan. 1999, the Defence Secretary: col.12.16 Feb., the Foreign Secretary: col.721. 23 Mar. the Prime Minister: cols.161–3. 25 Mar. the Foreign Secretary: col.536. 14 April, the Prime Minister: cols.19–21.

5. The relevant statements are as follows: 23 Mar. 1999, the Prime Minister: col.169. 24 Mar. the Deputy Prime Minister, col.483. 25 Mar. the Defence Secretary: cols.615, 617. 12.

6. Hansard, 25 Mar. 1999, the Minister of State: col.543.

7. Lords, 16 Nov. 1998, WA, col.139.

8. Lords, 16 Nov. 1998, WA, col.140

9. The key passage from this document was quoted in a speech by Lord Lauderdale on 6 May 1999, as follows:

“What about some of the other things that have been going on? I have to thank the noble Baroness the leader of the House for a letter that she kindly wrote to me about the legality of all this. She wrote to me on 16th April and placed a copy of her letter in the Library, so I take it that I am free to quote it here. I have asked—as reported at col.644 of the of 13 April—what was the legal basis for military action against Yugoslavia. The noble Baroness wrote:

‘I replied that, in exceptional circumstances, the use of force was justifiable when that was the only means to avert a humanitarian disaster. However, I mistakenly gave the impression that this [new] basis was also set out in a United Nations' resolution. It is not. But the force being used on the grounds of humanitarian necessity is in support of purposes laid down by the Security Council.’ That is very different from having a direct mandate from the United Nations.“ (Lords, 6 May 1999, col.861).

10. Lords, 6 May 1999, col.904

11. See also the press statement on 23 May 1999 by Dr Javier Solana, Secretary-General of NATO.

12. CR 99/15, pp.6–18

13. CR 99/15, p.16

14. ibid., pp.17–18.

15. The references are as follows: (i) Canada: CR 99/16; (ii) France: CR 99/17; (iii) Italy: CR 99/19; (iv) Portugal CR 99/21.

16. The references are as follows: (i) Germany: CR 99/18, p.7; (ii) Netherlands: CR 99/20, p.14; (iii) Spain: CR 99/22, p.8; (iv) United Kingdom: CR 99/23, p.13; (v) United States: CR99/24, p.10.

17. The references are as follows: (i) Belgium: CR99/15, pp.7–9, 15–16; (ii) United States: CR99/24, p.10.

18. I.H.T. 24 Aug. 1999

19. Supra p.880.

20. B.Y.B., Vol.63 (1992), pp.824825.

21. Parliamentary Papers, 1992–93, HC, Paper 235–iii, pp.85, 92.

22. Supra, para.11.

23. Financial Times, 8 Oct. 1998, p.13, emphasis supplied.

24. Recueil des Cours, Vol.11 (1972), pp.41–397.

25. Res. 3314 (XXIX).

26. ibid., p.89.

27. Academy, Hague, Recueil des cours, Vol.240 (1993–III), pp.256257.

28. Academy, Hague, Recueil des cours, Vol.230 (1991–V), pp.313316. Footnotes omitted.

29. British Year Book of I.L., Vol.54 (1983), pp.376377, 405–406, 528–529.

30. op. cit., pp.213–215.

31. Commons, 19 Oct., col.953.

32. House of Commons, 4 Feb. 1999, col.742 (Mr. Robertson).

33. Verwey, , in Cassese (ed.), The Current Legal Regulations of the Use of Force, Dordrecht, 1986, pp.5775 at pp.74–75.

34. The cases in which the U.K. has been a party include the Corfu Channel case (1947–49) (U.K. claim for compensation against Albania), (1948–51), (U.K. v. Norway) Fisheries Jurisdiction (1972–74) (U.K. v. Iceland) and Interpretation of the 1971 Montreal Convention (Libya v. U.K.) (1992–).

35. Art.5.

36. Art.53 of the UN Charter.

37. Art.41 of the UN Charter.

38. I.H.T., 27 Apr. 1999; The Times (London), 27 04 1999

39. Yearbook, I.L.C., 1980, Vol.11 (Part Two), pp.3452.

40. Order dated 2 June 1999 (Yugoslavia v. Belgium), p.9.

Kosovo Crisis Inquiry: Memorandum On The International Law Aspects

  • Ian Brownlie and C. J. Apperley


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