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Enrico Milano

Abstract

More than ten years since NATO intervened militarily to stop the violence and to create the conditions for a new regime of international administration, Kosovo remains at the top on the agenda of international actors and institutions. The present contribution examines the nature and scope of the Security Council’s action (and inaction) with regard to the political crisis and ensuing conflict emerged in Kosovo starting from the late 1990s and how that practice has shaped notions of territorial sovereignty. It analyses the different forms of international intervention in the four phases of the Kosovo controversy (from the 1998‐1999 crisis to the current situation post declaration of independence, passing through the UN administration of the territory and the negotiations on future status), the extent to which international law played a role in dictating outcomes and results and the ways in which the notion of territorial sovereignty was reinterpreted by the Council. The main conclusion reached is that, while some of the measures adopted throughout the years have introduced important novelties in the contemporary conception of territorial sovereignty, that has been the result of harsh bargaining between different states and groups of states in which the Council has only provided for the diplomatic setting, rather than the end products of the Council’s own policy and strategies. Moreover, as the current discussions over the mandate and legal basis of EULEX show, the interpretation of those measures and instruments has been remarkably at variance among the different actors, surfacing diplomatic conflicts and ‘agreements to disagree’ that have been frozen, in some cases for years, under neutral UN procedures and operational strategies.

Enrico Milano

Abstract

The present article describes the arbitral proceedings in the investment dispute between Italy and Cuba, with special regard for the Final Award rendered in 2008. The arbitration has raised a number of interesting issues in the application of customary international law, including the admissibility of claims in diplomatic protection in investment disputes under a BIT, the application of the rule on the exhaustion of local remedies, the attribution of acts of State-owned enterprises to the State and the use of general international law as a means to interpret treaty provisions defining the scope of the BIT. Some of these aspects have proved particularly controversial, as shown by the thorough dissenting opinion attached by arbitrator Tanzi, and they are critically analysed. The arbitration confirms the profound interdependence of bilateral treaties and customary international law in international investment arbitration.

Enrico Milano

The recent referenda held in Catalonia and Kurdish Iraq have reignited the debate over referenda, self-determination and unilateral secession and over the role of international law as a legal framework capable of governing and channelling those dramatic changes towards desired ends. The debate has been ever present in the Post Cold War period, considering that the number of states has increased from just over 150 to 196, with many of the new states emerging from non-consensual processes of separation. The present article assesses the general international legal framework applicable to secession, including the scope and content of principles such as territorial integrity, self-determination and uti possidetis and tests whether and to what extent the two recent separatist claims in Catalonia and Kurdistan fit into that framework. The lessons drawn are that international law is increasingly relevant to the regulation of secession and yet the practice related to the referendum in Catalonia highlights international law’s subsidiary regulatory function and the fact that, indeed, even in the twenty-first century, international law may, in some cases, remain neutral in secession attempts.

Reconciliation in Europe

A Case Study from the Western Balkans

Enrico Milano

Reconciliation between national groups and States following divisive historical events, such as in particular conflicts, is most of the times a difficult and painful process. Conflicting narratives may become entrenched and the passing of time may in certain cases produce further division, rather than healing of wounds and reconciliation. The present article considers the possibility of construing reconciliation as a principle of international law entailing due diligence obligations to remedy the harm produced and examines the recent case of the eu-sponsored dialogue and normalization process between Serbs and Kosovars, in order to see whether useful lessons can be drawn from the European experience to address disputes and historical conflicts in the Asia-Pacific region.

Unlawful Territorial Situations in International Law

Reconciling Effectiveness, Legality and Legitimacy

Series:

Enrico Milano

This work deals with the question of unlawful territorial situations, i.e. territorial regimes that are established and maintained in defiance of international law. It represents a very timely contribution to the debate concerning the nature, the aims and purpose of foreign interventions in the affairs of sovereign countries.
International lawyers have focussed on the important questions of the legal regime applicable to the conduct of the occupant and the authoritative decision-making processes by international institutions, but often neglected the broader and decisive question of the legality of the ‘foreign’ or ‘international’ presence as such. The author shows the relevance and, sometimes irrelevance, of international law to the determination of legality or illegality of the occupation, and how legal norms incorporate and interact with the concepts of effectiveness and legitimacy.
The book represents a welcome contribution to an issue of the outmost importance in international affairs at present times. It brings together elaborate theoretical discussion and thorough empirical research. Students of international law, practitioners, and anyone interested in deepening the understanding of the role and relevance of international law to territorial occupation will greatly benefit from this study.