Problem I.D.:

     In 2006, as the Montenegrin government insisted on a referendum on independence, the EU responded by requiring that, as a condition for EU acceptance of the results (and eventual EU accession talks), the referendum's terms include a 50% turnout and a 55% majority.  On May 21, 86% of Montenegro 's voters turned out to pass the referendum by 55.4 percent.  As a result, Montenegro became an independent state on June 3, 2006, and was admitted to the United Nations three weeks later.

Problem I.D. and I.G.:

Kosovo’s Declaration of Independence

     Negotiations over the future status of Kosovo continued in the mid-2000s under the leadership of former Finish president Martti Ahtisaari. In late 2007, Ahtisaari proposed a process that would lead to the eventual independence of Kosovo. It included a variety of obligations for Kosovo, including respect for human rights, special protection for Serbs and other minorities, multi-ethnic national institutions, and decentralization of power. The Kosovar leadership supported the plan; the government of Serbia opposed it; and the Security Council could not reach consensus on the plan due to strong resistance to it by Russia. The UN Mission in Kosovo (UNMIK), established under Security Council Resolution 1244 at the end of the Kosovo war in 1999, remained in control of Kosovo, though it had established a variety of local institutions over the years. Serbia had no control over the territory.

     On February 17, 2008, Kosovo’s parliament declared the territory’s independence from Serbia. The declaration, the full text of which can be found here, reads, in part:

The Assembly of Kosovo . . .

Reaffirming our wish to become fully integrated into the Euro-Atlantic family of democracies,

Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation . . .

Proud that Kosovo has since developed functional, multi-ethnic institutions of democracy that express freely the will of our citizens,

Recalling the years of internationally-sponsored negotiations between Belgrade and Pristina over the question of our future political status,

Regretting that no mutually-acceptable status outcome was possible, in spite of the good-faith engagement of our
leaders . . .

                               Approves

KOSOVA DECLARATION OF INDEPENDENCE

1. We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.

2. We declare Kosovo to be a democratic, secular and multi-ethnic republic, guided by the principles of non-discrimination and equal protection under the law. We shall protect and promote the rights of all communities in Kosovo and create the conditions necessary for their effective participation in political and decision-making processes.

3. We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations . . . particularly those that protect and promote the rights of communities and their members.

8. With independence comes the duty of responsible membership in the international community. We accept fully this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and Cooperation in Europe, and the international legal obligations and principles of international comity that mark the relations among states. Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall fully respect the sovereignty and territorial integrity of all our neighbors. Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations. . . .

11. We express, in particular, our desire to establish good relations with all our neighbours, including the Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to develop further in the near
future. . . .

12. We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including resolution 1244 (1999). . . .

* * *

     Recognition of Kosovo as an independent state followed quickly, but was hardly unanimous. As of the fall of 2009, approximately 60 states had recognized Kosovo as a state, including the United States, Japan, France, the United Kingdom, Malaysia, Saudi Arabia, Australia, Senegal, and Colombia. Serb and Russian opposition to Kosovo’s independence led to a lobbying campaign in the UN General Assembly to seek an advisory opinion from the ICJ about the legal status of Kosovo. In October 2008, the General Assembly adopted Resolution 63/3, which asked the ICJ for an advisory opinion on the following: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”

     As of the fall of 2009, 36 states had filed written statements with the Court, including the United States, Russia, China, Iran, France, Germany, and Cyprus. The statements remain confidential.

Notes and Questions:

1. Does Kosovo meet the criteria for statehood? Does it have the right to independence under international law? What is the effect of the recognition by 60 countries?

2. UN Security Council Resolution 1244, which set up UNMIK, was adopted under Chapter VII of the UN Charter. It includes the following provisions:

Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act . . .

Reaffirming the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo . . .

2. Welcomes the acceptance by the Federal Republic of Yugoslavia of the principles and other required elements [of the political settlement, spelled out in an annex, including “A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of . . . the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia . . . ] . . .

10. Authorizes the Secretary-General . . . to establish [UNMIK] in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions . . . .

Is the Kosovo Declaration of Independence consistent with Resolution 1244?

3. If you were lawyer in a foreign ministry, would you advise your minister to extend recognition to Kosovo? Should it matter to recognition whether Kosovo had a right to independence? What would be the implications of a “no” answer from the ICJ?

4. Did international law appear to influence or constrain various actors in the process of Kosovo independence?

South Ossetia and Abkhazia

     South Ossetia and Abkhazia are small regions in Georgia along Russia’s border, heavily populated (a majority in the former, a minority in the latter) by groups who do not ethically identify themselves as Georgian. Both Abkhazia and SO have been seeking independence from Georgia since the break-up of the Soviet Union. Abkhazia’s first attempt during 1990 was rejected by the USSR authorities. It reiterated these claims after Georgia’s independence in 1991, and, in 1999, following a referendum, issued a formal declaration of state independence. SO also originally sought independence when Georgia was still part of the USSR, prompting Georgian officials to revoke its status as an autonomous oblast, and then declared independence again in 1991. Its officials have also openly suggested some sort of merger with North Ossetia, which lies within Russia. Both Abkhazia and SO have been seeking international acceptance of their self-proclaimed status as independent states. Since the mid-1990s, Georgia’s control over each territory has been minimal, although various UN Security Council resolutions on the subject have re-affirmed their status as part of Georgia.

     In August 2008, following what many considered provocations by Georgia’s president, the Russian army invaded South Ossetia. A cease-fire arranged by French President Nicolas Sarkozy led to a removal of some Russian troops, but Russia, in support of the local Ossetian government, remained firmly in control of the enclave. A few weeks after the South Ossetia war, Russian President Medvedev signed a decree recognizing the independence of both entities. Medvedev’s decree stated:

[Georgian President] Saakashvili opted for genocide to accomplish his political objectives. By doing so he himself dashed all the hopes for the peaceful coexistence of Ossetians, Abkhazians and Georgians in a single state. The peoples of South Ossetia and Abkhazia have several times spoken out at referendums in favor of independence for their republics. . . .

The Presidents of South Ossetia and Abkhazia, based on the results of the referendums conducted and on the decisions taken by the Parliaments of the two republics, appealed to Russia to recognize the state sovereignty of South Ossetia and Abkhazia. The Federation Council and the State Duma voted in support of those appeals. . . .

Considering the freely expressed will of the Ossetian and Abkhaz peoples and being guided by the provisions of the UN Charter, the 1970 Declaration on the Principles of International Law Governing Friendly Relations Between States, the CSCE Helsinki Final Act of 1975 and other fundamental international instruments, I signed Decrees on the recognition by the Russian Federation of South Ossetia's and Abkhazia's independence.

Russia calls on other states to follow its example. This is not an easy choice to make, but it represents the only possibility to save human lives.

As of fall 2009, only one state had followed Russia’s example: Nicaragua. Why would the independence of Kosovo elicit much more international support than the independence of South Ossetia and Abkhazia?

Problem III:

     On June 28, 2009, the military forces of Honduras overthrew and removed from the country its elected president, Manuel Zelaya. The ouster followed months of tensions within Honduras, as Zelaya had sought to amend the country’s constitution to allow him to run for another term. Supporters of the president said he needed additional time to enact various reforms against entrenched political interests. Opponents saw him as a stooge and ally of Venezuelan President Hugo Chavez, who had successfully extended his presidency through a referendum. Honduras’ Supreme Court found the proposed referendum unconstitutional. When the military chief refused to conduct it and Zelaya tried to fire him, the Supreme Court ordered the military chief reinstated. The attorney-general then obtained an order from the Court to detain Zelaya (which may be found here), which the military used as a basis for the arrest and ouster from the country. Zelaya’s ouster was quickly confirmed by the country’s Congress, which replaced him temporarily with the congressional leader Roberto Micheletti.

     Although many Western Hemisphere governments, including the United States, had strongly opposed Zelaya’s attempts to amend the constitution, condemnation of the coup was swift. On July 1, 2009, both the OAS General Assembly and the UN General Assembly denounced the coup, called for the immediate and unconditional reinstatement of Zelaya and his government, and urged states not to recognize the new regime. On July 5, the OAS suspended Honduras’ membership in the organization. A round of regional diplomacy under OAS auspices began, but as of the fall of 2009, Zelaya had still not returned to office.

     If the Congress, Supreme Court, attorney-general, and military all support the detention or removal of an elected leader for engaging in unconstitutional behavior, should outside states condemn the ouster? What happened to UN Charter Article 2(7)?