Marc Weller

The Rambouillet Conference on Kosovo

The Rambouillet process sought to re-establish autonomous governance andhuman rights for Kosovo, under the protection of the international community. However, the Kosovo authorities had committed themselves to outright independence while the Federal Republic of Yugoslavia consistently rejected any international interest in the affairs of Kosovo, which it considered an entirely domestic matter. To reconcile these irreconcilable views, an initial attempt was made to establish self-governance for Kosovo for an interim period, without touching upon the issue of the status of that territory. As the Rambouillet conference progressed, the Contact Group moved significantly towards the FRY/Serb demand of expressly confirming its continued sovereignty and territorial integrity over Kosovo. While this and other concessions did not help to engage the FRY in the negotiating process, itjeopardized the acceptance of the agreement by Kosovo. The negotiations werebacked by the threat of the use of force, which could only be innovatively justified by reference to the doctrine of humanitarian intervention, inasmuch as there existed no formal Security Council mandate. However, the credibility of that threat was initially undermined by splits within the Contact Group during the actual negotiations, which also extended to implementation of the agreementupon acceptance by NATO. Moreover, the negotiations were hampered by thefact that one of the three principal international negotiators openly sided withone of the parties and essentially represented it. Encouraged by these divisions, Belgrade manoeuvred itself into a position of direct confrontation with NATO, which could now genuinely argue that the grave humanitarian emergency in Kosovo could only be addressed through acceptance of the Rambouilletaccord by Yugoslavia, even if sustained military attacks were required to achieve that end.

Undoing the global constitution: UN Security Council action on the International Criminal Court

The adoption of the Rome Statute of the International Criminal Court (ICC) adopted in 1998, marked the culmination of the international constitutional law–making of the twentieth century. The Statute reflects a vision of an advanced universal legal order, administered through a process of multilayered international governance. In this article the author examines the key elements of this design, including the doctrine of universality of international criminal jurisdiction, the process of universal law–making and international institution–building. The author places these concepts, and the ICC itself, into the context of the emerging international constitutional order. He also considers the attempts of the United States government to undermine some of the key assumptions that underpin the concept of the ICC. In addition to analysing the objections put by the US government, the author addresses its campaign in the United Nations Security Council to exempt US service personnel and others from the reach of the court. He argues that this episode represents a very important factor in the possible development of two parallel international legal systems: one of universal application, and a special set of rules and exemptions that, it is argued, should only apply to the one remaining superpower.

The Self-determination Trap

Abstract This article deconstructs the classical doctrine of self-determination, asserting that it serves to disenfranchise populations, instead of enfranchising them. Accordingly, self-determination discourse is not likely to satisfy those struggling for sovereign statehood, resulting instead in prolonged and bloody internal armed conflicts. The article then considers new state practice that accepts the application of self-determination in the sense of secession outside of the colonial context, but only under the very narrow criteria of the new doctrine of constitutional self-determination. Finally, the article asks whether a new generation of self-determination settlements is pointing a way out of the deadlock that is generated through the application of classical self-determination rules.

Bosnia and Herzegovina ten years after Dayton: Lessons for internationalized state building

The Dayton Agreements have been widely regarded as both a blessing and a curse from the very beginning. More formally known as the General Framework Agreement for Peace in Bosnia and Herzegovina, the agreement was initialled, together with 11 annexes and associated documents, at Dayton, OH on 21 November 1995, and formally signed in Paris some three weeks later. The termination of active hostilities in Bosnia and Herzegovina that ensued was greeted with tremendous relief, both inside Bosnia and Herzegovina and on the outside. After all, Bosnia and Herzegovina had been subjected to an armed campaign characterized by ethnic cleansing and genocide. Over 100 000 civilians had been killed and half of Bosnia and Herzegovina’s population displaced. However, there was also a sense of great reluctance. The Dayton settlement seemed to freeze the situation on the ground to the benefit of those who had conducted the armed campaign against the Bosnian state and imposed such tremendous suffering on its population. Most observers doubted whether the constitution for Bosnia and Herzegovina, contained in Annex 4 of the Agreement, could last. Instead, there was a general sense that Bosnia and Herzegovina would fall apart, as soon as the quite vast international military presence deployed to the territory was withdrawn. In short, the settlement seemed morally wrong and politically impracticable, but still necessary in order to end violence of a scale and intensity not seen in Europe since the end of the Second World War. Against this background the obstacles to success for (re)building Bosnia and Herzegovina into a secure, stable and dependable member of the international community appeared overwhelming. In addition to its dubious moral value, given that it apparently rewarded ethnic cleansing, the agreement also lacked domestic legitimacy, but not for this reason alone. It had been negotiated in far-away Dayton, OH, on a US air force base subjected to a state of quarantine until an agreement had been hammered out. The Bosnian Serb and Bosnian Croat communities were not even direct parties to the agreement, which was instead signed by the leaders of the then Federal Republic of Yugoslavia (Serbia and Montenegro) and Croatia in their stead. These leaders, Slobodan Milosevic and Franjo Tudjman, were thus given an opportunity by the international community, albeit grudgingly, to portray themselves as the guarantors of peace and stability in Bosnia and Herzegovina, rather than as key players in, and sponsors of, the conflict during the previous three-and-a-half years. Given the inability and unwillingness of all the parties to settle the conflict peacefully among themselves, the agreement reflected Ethnopolitics, Vol. 5, No. 1, 1–13, March 2006

On the Hazards of Foreign Travel for Dictators and Other InternationalCriminals

The Pinochet case highlights important developments in the international constitutional system which have become gradually established over the past half-century. These developments relate to the position of the state within the international constitution and the decreasing relevance of classical views centred upon state sovereignty and legal positivism. It was made clear that the powers and functions of the state are regulated by and embedded within the international legal system, including fundamental material rules of constitutional standing. Several of these rules enjoy a jus cogens and erga omnes status. Violations can involve crimes or state plus individual responsibility for the offenders directly under international law. And, according to the expanding doctrine of genuine universality, all states may enjoy a legal entitlement to exercise jurisdiction in relation to offenders who cannot claim the benefit of sovereign immunity. However, the Pinochet case also points to some difficulties. These lie principally in the failure of individual states to create the necessary domestic criminal law to implement genuine universality. Problems also arise in relation to crimes which claim special universality on the basis of law-making conventions, but which have not yet been established in general international law.

The Art of Achieving Agreement in Peace Negotiations: Meditration or Medilation?

Achieving agreement where there is none is a difficult art. There are several different principal approaches that tend to be applied in such circumstances. In order to understand whether we are witnessing the development of a new approach in settlements, including in particular in internationalized peace agreements, it will be helpful first to note the classical framework of analysis as it applies in an international context in this respect. Negotiation allows the parties to settle their dispute according to their respective interests and according to their relative bargaining power. Mediation offers technical facilities to the parties to encourage their dialogue. In addition, the mediator can apply his or her skills in helping the parties to step out of the well-established positions in relation to the dispute. Instead, a skilled mediator will allow each party to recognize that it can satisfy its essential needs without denying the same to the other side. Through an interest-based approach, and the techniques of expanding value in a mediation, the parties can be helped in inventing settlement options that are mutually satisfactory. Where disputes about facts or figures inhibit a settlement, a reference to objective standards recognized by the parties may assist. Or, through the mechanism of enquiry, a third party best suited to establishing the facts objectively may resolve the issue in a definite way. An objective finding as to facts can terminate otherwise interminable discussions and allow the parties instead to focus on an interest-based solution to the underlying dispute. Where the parties are unable to move away from positional bargaining and adopt an interest-based approach, conciliation may be employed. The conciliator will work towards an understanding of the interests of the parties, and will seek to reconcile these for them. In essence, the conciliator will seek to generate a solution that the parties would or should have reached had they been able to adopt an interest-based approach in a negotiation or mediation. The conciliator therefore needs to advance upon the profound understanding of the situation of the parties that will characterize a good mediator, Ethnopolitics, Vol. 8, No. 2, 235–237, June 2009