Len,

I agree with you and my point was precisely that Macedonia and Serbia are likely to approach the issue from different perspectives.

Serbia is likely to argue that Kosovo was never a State and that no succession can take place.  The Vienna Convention (on the law of treaties) would thus be relevant, but rather in terms of the existence or validity of the treaty (art. 6) than in terms of a fundamental change of circumstances.

Macedonia (to the extent that it wants to keep the boundary as defined with Kosovo) is likely to argue the issue in terms of State succession along the lines described in my first email.  Macedonia did recognize Kosovo as a sovereign State and I'm not sure it would be 'forced' to admit Serbia's position.

How do you reconcile those two approaches?  Either by negotiation or international adjudication, I suppose.  In both cases however, the outcome would depend on the real-life circumstances of Kosovo's return to Serbia, meaning that we can't really give any valid answer for now.

All the best,

Nicolas

-----Original Message-----
From: Len Nadybal [mailto:[log in to unmask]]
Sent: mardi, 3. novembre 2009 02:22
To: Leroux Nicolas
Cc: [log in to unmask]
Subject: Re: kosovo border agreement and vienna convention 1969

I don't believe it would be an issue of succession of States, because,
from Serbia's point of view, there is no succession going on - Kosovo
(is) was, in Serbia's eyes, not a state that to which Serbia could be a
successor.

In Serbia's eyes, the fundamental change of circumstances (within the
meaning of the Vienna treaty) would be that  it can now negotiate
directly with Macedonia, because what is in Serbia's eyes is only a
separatist regime in Kosovo is (would be) gone; a regime that Macedonia
previously recognized as sufficiently independent.  (Kosovo being
independent enough in Macedonian eyes that it felt it could legitimately
negotiate a valid international border agreement with Kosovo.)
Macedonia's sovereignty would be compromised to a degree in the event of
a reassumption of Serbian sovereignty over Kosovo, because it would be
forced to recognize it's agreement with Kosovo was defective, supplanted
by Serbia, and that it no longer has a choice, in order to avoid border
skirmishes, but to come to terms with Serbia.  I agree with Nicolas that
the parties would have to work out things on this point, but not because
there is a state succession at issue or that the Vienna treaty is
necessarily inapplicable in the hypothetical we're discussing.

Len Nadybal
Washington DC USA



Leroux Nicolas wrote:
> Dear Tullio,
>
> Subject to further research my initial reaction is that the situation you described qualifies as a succession of States (ie from Kosovo to Serbia, assuming that Kosovo was a State in the first place, see my comment below) rather than a "fundamental change of circumstances" within the meaning of the Vienna Convention on the Law of Treaties.
>
> The article of the Vienna Convention you mentioned should therefore not be relevant. In fact the whole Vienna Convention should be irrelevant, since it specifically provides that it does not apply to issues of State succession (see art. 73).
>
> The fate of boundary treaties in cases of State succession is quite clear: as a matter of principle, the successor State (in your case Serbia) is bound by pre-existing treaties establishing the boundary (see eg Art. 11 of the 1978 Vienna convention on State succession and the PCIJ decision on the Free Zones).
>
> So, in the situation you described, Serbia should be bound by the treaty signed by Kosovo and Macedonia, to the extent that it establishes the boundary between the two countries and/or is otherwise related to the regime applicable to such boundary.
>
> Depending on the conditions of the reunification of Serbia and Kosovo, Serbia could however claim that Kosovo was never a State and hence never had the capacity to enter into the boundary treaty with Macedonia in the first place.  Serbia may thus claim that the treaty is inexistent (or void) and that it is therefore not bound by it.
>
> In practice however, those issues of State succession would almost certainly be addressed in the context of the negotiations leading to Kosovo's return to Serbia (if any - sounds quite unlikely in the near future!)  It seems to me that the answer to your question would thus largely depend on the agreement of the parties on that particular point.
>
> All the best,
>
> Nicolas
>
> -----Original Message-----
> From: International boundaries discussion list [mailto:[log in to unmask]] On Behalf Of Tullio Aebischer
> Sent: lundi, 2. novembre 2009 14:19
> To: [log in to unmask]
> Subject: kosovo border agreement and vienna convention 1969
>
> dear all
>
> i would like to consider the following academic problem (really academic?) from the international law point of view.
>
> at first, three considerations:
> 1) kosovo and macedonia signed an agreement about your common border
> 2) yugoslavia dosen't recognize the right of kosovo of being indipendent, i.e. a state
> 3) the vienna convention on the law of treaties (1969) article 62.2 declare
>
> A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
> (a) if the treaty establishes a boundary;
>
> in this situation, a possible return of yugoslavia in kosovo (a fundamental change of circumstances), would be followed immediatly by the unilateral refuse of that agreement or yugoslavia must accept it?
>
> all your ideas are wellcome!
>
> Tullio Aebischer
> [log in to unmask]
>
>
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