Serbia’s Territorial Integrity and the Limits of UN Power

The United Nations’ special envoy for Kosvo proposed last week that Serbia should be partitioned between Serbs and Albanians. The country’s Kosovo region, currently occupied by NATO troops and administered by the U.N. (“UNMIK”), would be severed from Serbia to form a second Albanian state. Serbia naturally opposes this outside interference with what all agree to be its sovereign borders. However, the NATO troops put the Serbs in a weak position to negotiate.

The partition plan proposed last week raises several interesting questions.

1) The first question is what authority the UN has to slice up its member states. Security Council Resolution 1244 authorizes the UN administration in Kosovo to “facilitat[e] a political process designed to determine Kosovo’s future status.” Even though the Resolution pays lip service to Serbia’s “sovereignty and territorial integrity,” other provisions clearly indicate that any outcome of “negotiations between the parties for a settlement” that does not satisfy Albanian demands of independence will not be acceptable. (See Par. 11(f)). The negotiations appear to be window-dressing for a forced surrender of sovereignty.

Does S.C. Res. 1244 authorize the UNMIK to push for the partition of the country? Can an organ of the UN engineer the dismemberment of a member nation without a Security Council resolution specifically mandating it?

2) More fundamentally, does the Security Council have the power under the U.N. Charter to forcibly divide up its member states? Certainly the Charter does not convey such a power expressly. To be sure, the phrase “maintain or restore international peace and security” can be read as broadly as one wants – it could conceivably encompass eliminating a state that is a persistent menace to international peace.

But given the Charter’s ambiguous text, the circumstances of the U.N.’s creation, and the relationship between the U.N. and its members, it would be hard to sustain such a broad reading.

Compromising a country’s territorial integrity is perhaps the greatest power the S.C. could have. While the Charter is not precisely a system of enumerated powers, it would be odd if such a massive power would not be specifically mentioned. Indeed, the United States cannot slice up states of the Union though it has a far greater degree of central, sovereign and vertical power over their constituent states than does the U.N. over its member states. Indeed, if the U.S.’s membership in the U.N. potentially subjects it to international control of its borders, it might violate the U.S. Constitution, Art. IV., § 3 (“no new State shall be formed or erected within the Jurisdiction of any other State. . . without the Consent of the legislatures of the States concerned as well as of Congress.”).

3) Assuming the Security Council can divide up a country, can it do so in ways that otherwise violate international law? Does the U.N. system set up a dictatorship where the S.C. is entirely supreme, unchecked by any external norms, or is the S.C. just part of the international bureaucracy subject to international law like any other. For example, would it be legal for the Security Council to pass a resolution authorizing, in the name of order and stability, Ethiopia to annex Somalia? Iran to annex Iraq?

The U.N. presence in Kosovo was made possible by NATO bombing Serbia into submission. The war was not authorized by the Security Council and clearly violated the most important elements of the U.N. Charter, to say nothing of killing hundreds of Serbian civilians.

It is an unquestioned axiom of international law (which I hope to question in a subsequent post) that territory cannot be taken by force. The purpose of the prohibition is to prevent the illegal use of force, though most scholars say it also applies to legal use of force, i.e., self-defense. Thus the humanitarian character of NATO’s intervention should not change matters, as this is at best a quasi-legal use of force.

NATO’s conquering Kosovo and wresting it from Serbia seems to violate this core norm of international law. It should not matter that NATO acquired the territory to turn it over to a third-party (the Albanians), just as it would not matter if China conquered South Korea to turn it over to North Korea. NATO is certainly not acting out of entirely altruistic motives, anymore than the U.S. is in Iraq. NATO’s actions may also have been motivated by a desire to avoid having to deal with Albanian refugees; a retributive attitude towards the Serbs, who were cast in the role of the bad guys in the Balkan wars of the 1990s; and of course, “Wag the Dog.” That NATO’s actions have not been dictated purely by a desire to stop ethnic cleansing is evidenced by the fact that, after having occupied Kosovo, it did not stop the ethnic cleansing of the Serbs by Alabanians — which evicted most the provinces Serbis, despite formal international promises to protect them.

In this light, the U.N.’s current efforts seem like an attempt to grant legitimacy to a manifest violation of its own charter to justify or deflect attention from its complete failure to live up to its promises to Kosovo’s Serbs.

4) A final question concerns the contradictory international approaches to partition. In Kosovo the U.S. and the U.N. favor partition. Yet the same approach is ruled out within Kosovo itself – the U.N. rejects secession by the majority-Serb region, which wishes to join Serbia in the even of a Serbia-Kosovo split. Similarly, even as the two-state solution is demanded for Serbia, it is rejected for Iraq, and even Cyprus, where it is already a fait accompli. For someone who is truly not a partisan of either group, it is hard to see it as a testament to the justice or fairness of the U.N. and the “international community” that the Albanians get two states, while the much more numerous Kurds get zero. Indeed, the list of places where the demands of violent secessionists for independence are ignored by the international community is almost as long as the list of places with violent secessionists making such demands.

The reasons for this will be explored in a future post. But at first glance, it seems hard to see anything more than ad hoc politics behind these patterns. Nations support partition when they hope for diplomatic benefits and reject it when they think it will cause problems for themselves. The calculations are purely selfish, but in all cases justified with reference to international law – either “self determination” on the one hand, or “territorial integrity” on the other. But the haphazard way in which these principles are applied suggests they have little substantive content.