The Journal of Humanitarian Assistance
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"Marc Weller"
- The Hill proposal was adopted within the framework of the attempt by the international community to address the issue of Kosova as one of autonomy and to reject any claims for independence. It must be realized that this basic approach obviously determines the flavour of the agreement throughout.
- The agreement exhibits some features of an international agreement (a treaty), but its status is in fact far from clear, and probably left deliberately ambiguous. This ambiguity is dangerous for Kosova, as the implementation of the agreement appears to be envisaged at the level of FRY law, rather than international law.
- The agreement provides for limited legal personality for Kosova and actively denies its claim to statehood. The agreement does not constitute an interim arrangement towards statehood (as opposed to the case of Chechnya), but instead freezes the envisaged subordinate position of Kosova indefinitely.
- Due to a complex and complicated division of powers among several organs, Kosova is reduced to a position of authority that is considerably less developed than was the case under the 1974 constitution. Most importantly, the legal personality of Kosova as an overall entity is reduced to a vanishing point. A claim to self-determination in the future is precluded by the fractionating of authority and its distribution to various layers of competence.
- At a local level, very significant authority for self-governance is attributed to communes or municipalities, subject to certain important safeguards relating to the treatment of local minority populations. In practical terms, this is intended to balance the lack of legal personality and significant authority of Kosova as a whole over its own affairs throughout its territory. However, this practical autonomy at a sub-regional level is interfered with by involving Serbs and possibly others as a national group which is given (a) several layers of independent authority and (b) important veto rights over all aspects of decision-making in Kovova.
- Generally, this agreement is heavily dominated by considerations of achieving a solution that is acceptable to the FRY/Serbia–even to the point of abandoning the international demand that at least the autonomy status of the 1974 constitution must be restored. Such a proposed solution sacrifices the legitimate aspirations of the people of Kosova to the perceived need of appeasing Belgrade. With the conclusion of the initial deal with Milosevic of 12/13 October, the representatives of Kosova will come under even heavier pressure to accept this sacrifice.
- Conclusion: While the Republic of Kosova should not in principle oppose negotiations towards an interim arrangement, such an arrangement must not be concluded along the lines proposed by Ambassador Hill. Even to start negotiations on the basis of this proposal will inevitably yield an unacceptable result which prejudices Kovoa’s position irreparably, for now and in the future.
Contrary to popular myth, humanitarian neutrality and impartiality are not absolute concepts. Their application depends on the type of international actor involved, the mandate according to which that actor operates, and the nature and extent of the international crisis or humanitarian emergency that is being addressed. For future UN mandated action, clarification of these concepts and their proposed concrete application in relation to the target groups of the humanitarian operation in advance is required, if the disastrous dissonance between mandates and their implementation that appeared in instances such as Somalia and Bosnia is to be avoided.
This note argues that the threat of the use of force issued by the United States and the United Kingdom against Iraq in January/February 1998 was not legally justified. There exists no general right for those two governments forcibly to implement the ‘will of the international community’ or of the Security Council. Neither does a material breach of cease-fire resolution 687 (1991) justify the application or threat of force against Iraq. Furthermore, there exists no legal right to launch an armed attack against Iraq in response to the abstract threat posed by her possibly remaining weapons potential. Instead, the United States and United Kingdom policy represents a dangerous arrogation of powers which is bound to undermine the prohibition of the use of force in international law.
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