Noel Malcolm's article ignores UNSC resolution 1244, and elevates the status of the Badinter commission's findings to arrive at a perverse conclusion. The Badinter commission's declaration that Yugoslavia is 'dissolved' had no legal standing whatsoever. UN resolutions on the Yugoslav conflict up to and including 1244 referred to FR Yugoslavia as a continuing entity. Serbia became the successor state to FR Yugoslavia following the secession of Montenegro.The status of Kosovo vis a vis Serbia in 2008 is thus analoguous to the status of Abkhazia and South Ossetia to Georgia in 2008. Arguments to the contrary are simply special pleading.

Thank You Mr. Maloclm! The claims of the Kosovar Albanians are based on the principle of self-determination. In order to decide whether they have the right to self-determination in international law, a brief analysis of its sources, treaty law, customary law, general principles, judicial decisions and teachings of the most highly qualified publicists has to be undertaken. In contemporary international law, this principle was firstly recognised in the U.N Charter as necessary for the development of peaceful and friendly relations among nations , and its Article 73 expanded the application of this principle to all colonial territories. Through the 50’s up until the beginnings of the 60’s, the general perception was that the right to self-determination was exclusively reserved for the colonial people, and this perception was reinforced by the General Assembly Resolutions 1514 (XV) and 1541 (XV). With the process of decolonisation gaining pace and the greater emphasis placed on human rights, common Article 1 of the two major International Covenants of 1966 represented a giant leap by recognising the self-determination as a right of all peoples, both a civil and political, as well as economic, social and a cultural right. The establishment of the self-determination as a legal principle in international law was further reinforced by the Declaration on Friendly Relations in 1970. This document is more explicit than the previous ones and extends the principle to people under “[a]lien subjugation, domination and exploitation […]” and implicitly states that a sovereign government should represent “[t]he whole people belonging to the territory without distinction as to race, creed or colour.” The Helsinki Declaration follows the same line by encompassing the “[e]qual rights and self-determination of peoples”. Although all these documents are adopted by the U.N General Assembly and the Conference on Security and Cooperation in Europe (CSCE) in the form of resolutions and declarations, and as ‘soft law’ have no binding force in international law, they demonstrate the prevailing opinio juris among the international community with regard to the principle of self-determination. Nevertheless, such a principle was not without its limitations. The exercise of the right to self-determination inadvertently clashes with the principle of the preservation of the territorial integrity of states, firmly established in international law long before the principle of self-determination and most importantly with the principle of uti possidetis (non-violability of borders), confirmed as a principle by the International Court of Justice in the Frontier Dispute Case (Burkina Faso v. Mali). Even in the text of the Declaration on Friendly Relations this limitation is expressly stated. The right to self-determination has two aspects, the internal and external ones. The internal self-determination includes the right of the people to manage their own affairs, decide their political organisation and have the right to vote in the decisions taken that affect them within the state institutions, in other words, the right to autonomy. The external self-determination implies the right of the people to establish themselves as a separate state entity within the international community and enter in relations with other states, in other words, the right to secession. State practice has consistently been overwhelmingly in favour of the preservation of the territorial integrity of states. Since the creation of the U.N, the only case of secession approved by the international community was that of Bangladesh from Pakistan in 1971, which was recognised immediately and became a full member of the United Nations. An isolated case like this is hardly indicative of a support for the right to self-determination in state practice. Moreover, even the acceptance of Bangladesh in the international community wasn’t done without some sort of accommodation from the government of Pakistan. In a completely opposite fashion, the international community continues to deny the recognition of the Republic of Northern Cyprus after more than thirty years of its existence. Although international recognition is not a precondition of statehood in international law, it controls one of the constitutive elements of a state, the ability to enter in relations with other states. After analysing in detail the current situation of the right to self-determination in international law, in its Advisory Opinion “Reference Re Secession of Quebec”, the Canadian Supreme Court stated that exists “[a]t best a right to self-determination in situations of former colonies; where a people is oppressed; […] or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development.” Obviously, the people of Quebec didn’t fall in any of the three categories, so the Court answered negatively the question of their right to external determination. Most importantly, the court added that “In all the three situations, the people in question are entitled to external self-determination because they have been denied the ability to exert internally the right to self-determination.” The case of Kosovo would undoubtedly fall under the third category of people vis-à-vis the Serbian government.

We might emphasize some legal aspects of Kosovo status after the revision of the Constitution in 1974. I don't know if we can find a way to give the same legal rights to Kosovo as to Croatia in the Yougoslav Federation. Practically it was so but legally? We're having a problem of interpretation of what's law and what's not. There should be some other ways to determine the right to some specific goup or ethnicity (not people because kosovans mainly belong to albanian people) to separate from a power that broke the social contract that linked them. Remedial secession was one time invoked and the fact that people's or group's destiny shouldn't be determined by the land they live on.

Very enlightening! Thanks!