JURIST Guest Columnist Timothy Waters of Indiana University School of Law Bloomington says that Kosovo's declaration of independence represents a problematic precedent in international law that may ironically bring us back to self-determination as the core historical and moral justification for secession from Serbia...
Should Kosovo be recognized as an independent state? There are compelling arguments on both sides. The commitments the U.S., European States and Russia made in the Helsinki Final Act, for example, suggest that Serbia's territorial integrity must be respected, as does Security Council Resolution 1244, which created the international protectorate over Kosovo and laid the legal groundwork for the final status process. Russia further claims that 1244 only authorized a UN administration and therefore the planned handover to an EU supervisory mission is illegal and that the since the resolution is still in force and has not been superseded by any other Security Council action, the Kosovo Assembly's action is in violation of 1244.
But, counter Western governments, the campaign of ethnic cleansing that Serbia conducted against Kosovo's Albanians in 1999, and the UN protectorate established under 1244, confirm that Serbia has lost any legitimate right to retain sovereignty. Anyway, 1244 doesn't say anything about the outcome of the final status process, so independence is not precluded. The Security Council is supposed to decide the province's status, but it is clearly deadlocked and that provides a further argument for Western recognition: UN paralysis compels outside action. Finally, the Declaration expressly invites the EU mission though that hardly persuades unless the Declaration is valid.
Who's right? Security Council resolution 1244 doesn't actually say anything about creating a new state, and prudential interpretative principles as well as the general purposes of the UN Charter would probably counsel against reading in an extraordinary right to alter the borders of another state. Western diplomats rather lamely note that 1244 only mentions territorial integrity in the non-operative preamble but the preamble's reference is to the Helsinki Final Charter, whose strong protections for territorial integrity apply whether they are mentioned or not. And the first article of the operative text "[d]ecides that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and. . .annex 2" and in those annexes, Yugoslavia's (read Serbia's) territorial integrity is mentioned.
Besides, so what if 1244 doesn't textually exclude the possibility of independence? If partition prohibited by the Charter and contrary to its purposes, it's ultra vires for the Security Council in any event. You can't bootstrap in an unavailable power to partition just by failing to mention the legal and legitimate outcomes with sufficient specificity. Still Western powers have to bootstrap onto 1244 for a simple reason they know they can't get another, clearer resolution through the Security Council.
Of course, who really cares about such lawyering? Russia may be right, but it's wrong. The argument that really drives Western support for the Kosovars' cause that independence is a necessary response to the ethnic cleansing suffered by Albanians, who cannot trust Belgrade ever again is empirically persuasive and morally powerful. Curiously, though, it finds little traction in international law.
There is language in the General Assembly's Declaration on Friendly Relations, Resolution 2625(XXV), for example suggesting that territorial integrity only protects states "possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour" something Serbia patently was not throughout the 1990s. More recently, the 'responsibility to protect' has gained considerable traction. But a right to intervene and a right to partition are not identical. These claims are highly general, and have never been applied to forcibly partition a country against its will. No one has established a clear threshold test for such an action. (The Secretary General convened a working group in 2007 to take the "inevitable next step" and give the responsibility to protect "practical meaning," which rather suggests it doesn't have it yet.)
The US and majority European view (not, pointedly, the EU's, since several EU states won't be recognizing Kosovo) is a replay, in a sense, of the justifications surrounding NATO's original intervention in Kosovo: that did not have the Security Council's sanction either, and NATO leaders at the time were mostly silently about the legal basis. Their strategy was to declare the moral necessity of what they were doing, and let it blow over. A prominent commission of scholars termed the Kosovo war 'illegal but legitimate,' and that same sensibility informs Western approaches to Kosovo's independence now: The case is so compelling, why worry about the technicalities, especially when Russia is playing the spoiler? Look for arguments, once again, about how Russia's exercise of its veto proves the need for reform at the UN. (Meanwhile, look for the US to exercise its veto when Russia demands UN action to quash Kosovo's declaration.) And of course, the legal niceties notwithstanding, if Western recognition sticks and Kosovo maintains its independence, then, over time, that fact alone will constitute an important data point proving that the right to secede following ethnic cleansing and the responsibility to protect will have become established.
Of course, formal legal arguments won't decide Kosovo's future they are, at most, tools in the hands of the contending parties but the underlying ideas about state sovereignty, territorial integrity, fear of fragmentation, commitment to supranational norms do play an important role in the debate. So, what kind of legal precedent does independence for Kosovo create in international law or at least what predictable effect is it likely to have?
Russia has played a skillful hand in deflecting momentum toward independence. A little more than a year ago, when the UN's envoy, Martti Ahtisaari, announced his plan for the province, most Western experts assumed Kosovo would be independent by the middle of 2007. But Russia insisted on a negotiated solution and its consistent and effective reminders about the threat to the norm of territorial integrity that independence would pose implicitly linked Kosovo's independence to the outcome of other conflicts in which it has an interest. The states within Europe that are opposed to Kosovo's independence, like Cyprus and Spain, have legitimate concerns about their own territorial integrity.
Citing the province's unique history of suffering and its recent UN-sanctioned international supervision, the United States insists that Kosovo isn't a precedent. But what does that mean? It's not as if there is a clear answer in international law about this that everyone agrees upon; the answer is going to come out of an ugly and protracted political contest, and will be read backwards from subsequent events.
Independence for Kosovo means the partition of Serbia, and it's not possible to simply declare that it doesn't have any effect on other situations. It's a precedent if people think it is, and Vladimir Putin, for one, is determined to exploit Kosovo for other conflicts in the former Soviet sphere there is a real chance Russia will move to bolster its support for breakaway regions in Georgia, for example. Certainly, the Serbs of Bosnia have suggested that if Kosovo can separate from Serbia, they can separate too. Are these cases connected? Legally no, but politically, of course they are.
Possibly the best proof that Kosovo is a precedent is that its Declaration of Independence insists it's not. Kosovo's Assembly actually "Observ[es] that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation." That's a far cry from the self-evident universalism of the American Declaration of Independence or the French Declaration of the Rights of Man and Citizen though one senses the hand of diplomats from these very countries vetting drafts of Kosovo's declaration to ensure this level of humility.
But inserting a clumsily obvious phrase in someone else's founding document isn't going to determine this event's meaning. The U.S. wants independence for Kosovo but it doesn't want to pay the price in precedent and politics which independence implies. The U.S. can unilaterally recognize Kosovo, but it can't control those other effects, and Russia's actions. These concerns are a large part of the reason that Europe and the U.S. despite favoring Kosovo's independence were for so long unwilling to press ahead in the face of Russian opposition, hoping instead that the problem could be put off.
Because the Serbs Can...
The problems are still there. Whatever its legal or moral justifications, independence will not actually change much in the short term, and it will likely make one thing worse: Kosovo's Serb minority is deeply alienated from the Albanian majority, and in the north, where Serbs predominate, they are unwilling to accept the new state's authority. The Ahtisaari Plan contains generous proposals to protect Serbs cultural and political rights, and Kosovo's Assembly has pledged to implement the Plan in full. But there's no indication that northern Serbs who maintain close ties to Belgrade, which subsidizes the Serb presence in Kosovo will agree to integrate. From their point of view, they have no reason.
One way to solve the problem of the north would be to not try to solve it instead, simply let that area remain part of Serbia, and limit the territory of the new state to those areas populated by Albanians who have a legitimate claim to international intervention to protect them from a regime that has proven unacceptably dangerous to them. Indeed, if we accept that the responsibility to protect justifies intervening, we still have to ask, 'to protect whom?' Our responsibility isn't to a territory, but to the people Belgrade put at risk. That responsibility may justify recognizing an independent state for Albanians, but does it justify removing parts of Serbia whose population neither wants nor needs our protection?
The potential benefits of a flexible territory approach grounded in the triple principles of respecting sovereignty where possible, promoting democratic choice, and protecting individuals from repression are obvious: greater scope for a negotiated solution, simplification of Kosovo's demography, which in turn makes its governance less fragile; and of course, for the Serbs in the north themselves, the opportunity to remain citizens of their preferred state without moving. Nothing in 1244 would bar such a solution, yet any border adjustment has been categorically excluded by the Contact Group responsible for final status negotiations since the outset. It is no exaggeration to say that the one plausible path to compromise has never been on the table which is as good a proof as any that ideas can have tremendous power in politics.
Another, Older Way
Admitting a solution for the northern Serbs on the basis of their political desires also suggests that there is another way to justify Albanians' independence one not recognized by current law, but with strong historical roots and strong moral intuitions supporting it: a return to self-determination. Kosovo's Albanians ought to have their independence not because they were oppressed or subjected to ethnic cleansing, nor because the great powers allow it, but by virtue of their separate identity and overwhelming majority on the territory by virtue of their existence as a people that desires to determine its own destiny. Looking back, surely we could all agree that it would have been better to recognize the independence of Kosovo's Albanians when the first called for it in the early 1990s, before the exterminations and the expulsions; surely no people should have to suffer as they did before claiming what so many have as a right. Now that would be a precedent worth recognizing.
Timothy William Waters helped prepare the indictment of Slobodan Milosevic. He is now an associate professor of law at Indiana University (Bloomington).