1 See Simma, Bruno, NATO, the UN and Use of Force: Legal Aspects, 10 European Journal of International Law (EJIL) 1 (1999); Compare Cassese, Antonio, Ex iniuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? 10 EJIL 23 (1999); See also Koskenniemi, Martti, The Lady Doth Protest too Much: Kosovo and the Turn to Ethics in International Law (2002) 65 Modern Law Review 159 (2002).Google Scholar

2 East Timor (Port. v. Austl.), 1995 ICJ para. 29.Google Scholar

3 Declaration on Friendly Relations, GA Res. 2625 (1970).Google Scholar

4 Id.; see also Reference re Secession of Quebec, 115 ILR 536 (Can. 1998).Google Scholar

5 Declaration on Friendly Relations, supra note 3.Google Scholar

6 The so-called ‘safeguard clause’ of the 1970 Declaration was repeated, in slightly different language, in the 1993 Vienna Declaration. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, 32 ILM 1661, 1665.Google Scholar

7 Reference re Secession of Quebec, supra note 4.Google Scholar

8 Id., 586–7, para. 132. For a less reticent ruling, however, about the ability of widespread human rights abuse to trigger self-determination-type claims, see Concurring Opinion of Judges Wildhaber and Ryssdal, Loizidou v. Turkey, EurCtHR (1996); available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/ Google Scholar

9 For a calm and well-reasoned discussion of the right of self-determination in the creation of new states, see James Crawford, The Creation of States in International Law 107–128 (2d ed., 2006).Google Scholar

10 For the establishment of the Commission, see Commission of the European Communities, Declaration on Yugoslavia, 24 Bulletin of the European Communities 115 (1991).Google Scholar

11 Opinion No. 2 (reproduced), 3 EJIL 183–4 (1993).Google Scholar

12 The Contact Group is made up of the U.S., the U.K., France, Italy, Germany and Russia. It is working closely with the UN Special Envoy for Kosovo, Martti Ahtisaari, and providing the framework in which final status is negotiated. Statement by the Contact Group on the Future of Kosovo, 31 January 2006, available at http://www.unosek.org, the official website of the Contact Group.Google Scholar

13 Brown, Bartram S., Human Rights, Sovereignty and the Final Status of Kosovo, 80 Chicago-Kent Law Review 269 (2005), citing Report presented to Council of the League by the Commissioner of Rapportuers, League of Nations Doc. B.7.21/68/106 (1921).Google Scholar

14 Moreover, such an autonomous regime is accepted by the majority of the Serbian population as evidenced by the recent referendum in support of the new constitution, which includes several articles guaranteeing self-rule for, as well as minority and human rights within, Vojvodina. See Serbia backs draft constitution, 30 October 2006, http://news.bbc.co.uk/2/hi/europe/6097344.stm.Google Scholar

15 See Montenegro gets Serb recognition, 15 June 2006, http://news.bbc.co.uk/2/hi/europe/5083690.stm.Google Scholar

16 Island of Palmas (Neth. v. U.S.) (1928), 2 R.I.A.A. 829.Google Scholar

17 These four criteria – a clearly defined territory, a population, effective government and the ability to enter into relations with other States – have long been held to reflect customary international law in this area.Google Scholar

18 See Constitutional Framework For Provisional Self-Government, UNMIK/REG/2001/9 (15 May 2001); available at http://www.unmikonline.org/.Google Scholar

19 Crawford asserts that territories that have been governed in such a way so as to create in effect non-self-governing territories may constitute a special category to which self-determination applies. As possible examples for this category, he cites Kosovo, Bangladesh and perhaps Eritrea. See Crawford, supra note 9 at 126.Google Scholar

20 For example, the widespread recognition of Bangladesh in 1971 following its secession from Pakistan, and despite the military assistance of India in resisting attempts by the Pakistani army to prevent East Pakistan from breaking away.Google Scholar

21 Letter Dated 7 June 1999 from the Permanent Representative of Germany to the United Nations addressed to the President of the Security Council, S/1999/649 (7 June 1999).Google Scholar

22 Military Technical Agreement between the International Security Force (KFOR) and the Governments of the FRY and the Republic of Serbia, Kumanovo (FYRoM), 9 June 1999.Google Scholar

23 Similarly, Crawford has suggested that the hurried recognition of the Congo can be explained by an interpretation of ‘government’ as comprising two elements: the actual exercise of authority and the right or title to exercise that authority. With regard to the Congo, it is the latter element that prevailed. However, this was in the context of decolonization and the uncontested nature of title. There is no agreement that Kosovo has the right to exercise sovereign governmental authority. See Crawford, supra note 9 at 56–8.Google Scholar

24 The Security Council established the UN Transitional Administration of Eastern Slavonia, Baranja and Western Sirmium (UNTAES) with Resolution 1037 (1996). UNTAES comprised a military and civilian component, and in addition to de-militarising the area, it provided policing, public services and organised the re-settlement of refugees. Its mandate ended on 15 January 1991, when administration was handed back to Croatia. See Crawford, supra note 9 at 556–7.Google Scholar

25 See S. C. Res. 216 (12 November 1965), condemning the “illegal racist minority regime” of Smith; G. A. Res. 2024 (XX), (11 November 1965); more generally, see Crawford, supra note 9 at 129.Google Scholar

26 S. C. Res. 713, (25 September 1991).Google Scholar

27 For the application of Article 2(4) UN Charter in this regard, see Crawford, supra note 9 at 131–148. According to Crawford, “where a state illegally intervenes in and foments the secession of a part of a metropolitan state other states are under the same duty of non-recognition as in the case of illegal annexation of territory.” Id. at 148. The refusal to recognise the Turkish Republic of Northern Cyprus has been justified by some states, such as the UK, on the basis of the illegal military intervention by Turkey that established it. Id. at 133. Furthermore, whether or not one views Kosovo as territory occupied by the Security Council acting as the international community, the strict prohibitions of the transfer of title and people of occupied territories under Section III of Geneva Convention IV (1949) reflect the widespread unwillingness to allow the use of force to affect title.Google Scholar

28 Among the considerable amount of literature in this area, see Gowlland-Debbas, Vera, The Functions of the United Nations Security Council in the International Legal System, in The Role of Law in International Politics 277–313 (Michael Byers ed., 2000).Google Scholar

29 According to the ICTY's interpretation of Article 41, the provision “provides no limits on the discretion of the Council to take measure short of force”. Prosecutor v. Tadic (Jurisdiction), 1996, 35 ILM 35.Google Scholar

30 Reparation for Injuries, Advisory Opinion, 1949 ICJ 182 (11 Apr.).Google Scholar

31 S. C. Res. 216 (12 November 1965); S. C. Res. 217 (20 November 1965).Google Scholar

32 G. A. Res. 181 (29 November 1947); S. C. Res. 42 (5 March 1948).Google Scholar

33 S. C. Res. 687 (3 April 1991).Google Scholar

34 S. C. Res. 1271 (25 October 1999).Google Scholar

35 Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, 1971 ICJ 16 (21 June).Google Scholar

36 The Charter of the United Nations. A Commentary [hereinafter charter] (Bruno Simma et al. eds., 2d ed. 2002).Google Scholar

37 In the so-called ‘Spanish Question’, see the Sub-Committee's response to Polish attempts to bring the actions of the Franco regime under Article 39; the Sub-Committee found that because the activities do not at present constitute an existing threat to international peace and security, “the Security Council has no jurisdiction … under Article 40 or 42”. SCOR, 47^th meeting, 18 June 1946, 370–376; further, in the case of the Free City of Trieste, the Council was moved to justify the connection between the Trieste dispute and the maintenance of international peace and security in the face of objections from the Australian representative. SCOR, 89^th meeting, 7 January 1947, 5–7.Google Scholar

38 For a history of the province and its relationship with more powerful neighbours, see Tim Judah, Kosovo: War and Revenge (2002).Google Scholar

39 The 1920 Treaty of Trianon imposed upon Hungary at the end of the First World War saw millions of Hungarians left outside the new rump state of Hungary once large swathes of territory were divided up among neighbours. This “re-distribution” provoked a bitterness that is still very much part of Hungarian identity 85 years and many more upheavals later.Google Scholar

40 Judah, Tim, Serbia: The Coming Storm, The New York Review of Books, 19 October 2006.Google Scholar

41 The UNHCR has made widely reported plans for what it anticipates to be a mass exodus in the wake of an independent Kosovo. However, the likelihood of this occurring is much contested, it does seem likely that some Kosovo Serbs will relocate.Google Scholar

42 The main issue in the referendum was the inclusion of a provision in the constitution stating that Kosovo is an integral part of Serbia. The draft constitution was supported by 51.5% of voters, thus passing the 50% threshold necessary to validate the vote. See Serbia backs draft constitution, supra note 14.Google Scholar

43 Judah, supra note 40.Google Scholar

44 For a statement that the response of the Kosovar Albanians to disappointment will see UNMIK lose control of the province used as an argument for a swift conclusion to the talks in favour of independence, see International Crisis Group, Kosovo Status: Delay is Risky (Brussels/ Pristina, 10 November 2006) available at http://www.crisisgroup.org/ Google Scholar

45 CHARTER, supra note 36 at 711.Google Scholar

46 See Kingsbury, Benedict, Sovereign and Inequality, 9 EJIL 599 (1998).Google Scholar

47 See, in particular, in Martti Koskenniemi's The Lady Doth Protect too Much, “against the particularity of the ethical decision, formalism constitutes a horizon of universality, embedded in a culture of restraint …” Koskenniemi, supra note 1 at 174. I am grateful to Euan MacDonald for reminding me of this passage.Google Scholar

48 See Koskenniemi, Martti, The Police in the Temple – Order, Justice and the U.N.: A Dialectical View 6 EJIL 334 (1995); see also Beckett, Jason A., Rebel Without a Cause? Koskenniemi and the Critical Legal Project, 7 German Law Journal 1045 (2006); http://www.germanlawjournal.com/pdf/Vol07No12/PDF_Vol_07_No_12_1045–1088_SI_Beckett.pdf, commenting on Koskenniemi's work in this area.Google Scholar

49 See Cassese, , supra note 1 and Srdjan Cvijić in this issue.Google Scholar

50 While I accept that the existence of a doctrine of non-Security Council mandated humanitarian intervention is hotly disputed, it is also supported by many. Without wishing to enter this debate, it seems a wise policy to attempt to set clear limits to what appears to be an emerging doctrine, whether one agrees with it or not.Google Scholar

51 See Walker, Neil, Late Sovereignty in the European Union, in Sovereignty in Transition (Walker ed., 2003).Google Scholar

52 For example, one could argue that the Tamil Tiger party in the faltering cease-fire and failing peace talks in Sri Lanka would have less incentive to compromise on government demands were the Security Council to grant Kosovo independence. See Analysis: Sri Lanka talks fail, 30 October 2006, http://news.bbc.co.uk/1/hi/world/south_asia/6099514.stm Google Scholar

53 The latest International Crisis Group report urges the Security Council to pass a resolution without delay endorsing Ahtisaari's proposals (that will be finalised at the end of January 2007) and handing over power to Kosovo's government. See International Crisis Group, supra note 44.Google Scholar

54 Crawford, supra note 9 at 417. This is of course not to suggest that there have not been contested situations of secession, but that the former ‘parent’ state has reconciled itself to the new situation and the new state has been accepted for membership of the United Nations.Google Scholar

55 See The Secretary-General, Review of the Role of the Trusteeship Council: Report of the Secretary-General, U.N.Doc. A/50/1011 (1 August 1996), supporting the repeal of Article 108 as redundant.Google Scholar