19 Feb Does Kosovo’s Independence Violate International Law?
I am not really sure, but the erosion of the U.N. system and international law is something that is part of every Serbian and Russian government spokesman on this issue. And there is certainly some plausibility to this argument, as I understand it. U.N. member states are supposed to recognize the territorial sovereignty of other member states. (See, e.g., UN Charter, Art. 2 (“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. “)
But Kosovo’s nationhood is, quite frankly, a creation of NATO’s 1999 military intervention (an intervention that was itself arguably illegal under international law). So the NATO states have “illegally” severed Kosovo from Serbia via an “illegal” military action.
Let’s be honest. Neither the Serbs nor the Russians are particularly sympathetic parties here. But this does not completely explain the deafening silence from Western public international law professors on this issue. Or the angry protests from international-law-abiding progressives in the Western world, who raised the “illegality” argument constantly against the Iraq and Afghanistan interventions.
Where is the outrage, or at least the fair-minded analysis? It doesn’t have anything to do with the policy preferences of Western international law academics and Western progressives, does it?
There’s a good quote in the ninth edition of Oppenheim’s International Law (p.130):
“The overwhelming practice of states does not accept that the mere claim of a community to be an independent state automatically gives it a right to be so regarded, or that an existing state is justified in recognising or refusing to recognise a new community as a state in disregard of whether it fulfils the factual requirements of statehood. While the grant of recognition is within the discretion of states, it is not a matter of arbitrary will or political concession, but is given or refused in accordance with legal principle. That principle … is that, when certain conditions of fact (not themselves contrary to international law) are shown to exist, recognition is permissible and is consistent with international law in that it cannot (as may recognition accorded before those facts are clearly established) be considered to constitute intervention; and that, while recognition is accordingly declaratory of those facts, it is also constitutive of the rights and duties of the recognised community in its relations with the recognising state.”
I’m not sure what the legality of NATO’s action has to do with issue of lawful recognition? It seems a gratuitous attempt to find hypocrisy when the real question is whether in fact there is room within the accepted declarative and constitutive schema of opposable state legal personality to explain the silence.
As explained above, the accepted theory with regard to states is that objective facts on the ground, about the nature of the community, are relevant in grounding valid recognition, to establish a form of opposable statehood.
Under this view, I’m not sure how any antecedent NATO action wouldn’t deny or prevent this from being the process in question?
Also, the illegality of the Iraq war hardly deserves quotation marks like that contention is seriously in dispute. Amongst academics, it is basically only Ruth Wedgewood who is doing anything like this. Mainstream academics have a consensus view.
There’s nothing really stopping Kosovo from declaring independence – the only international legal obstacle to Kosovo, or for that matter any other entity, declaring independence is a problematic interntional legal concept called uti possidetis juris, which dates back to the Roman Empire and has been applied in Latin America, Europe, Asia, and Africa.
I have written about the concept more generally in the context of the ICJ (Economic and Cooperative Post-Colonial Borders: how Two Interpretations of Borders by the I.C.J. May Undermine the Relationship between Uti Possidetis Juris and Democracy, 25 PENN ST INT’L L. REV 207 (2006) , but a more specifically relevant piece regarding the question of Kosovo was written by Enver Hasani (Enver Hasani, International Law Under Fire: Uti Possidetis Juris: From Rome to Kosovo, 27 FLETCHER F. WORLD AFF. 85). Hasani explores the history of the concept within the context of Kosovo.
Generally, uti possidetis juris is a concept with uncertain foundations in international law. It is unclear whether it is a principle or rule of international law, or whether it is customary international law, so it is neither a fundamental tenet nor a reliable source of guidance. In his own exploration of the concept, Steve Ratner labels it an example of Thomas Franck’s “idiot rule” – a simple, clear norm that offers an acceptable outcome in most situations but whose very clarity undermines its legitimacy in others.
If an international legal argument must be made, it must start with uti possidetis juris, and the fact that there was nothing really stopping Kosovo from declaring independence under international law – rather, the question was whether the practice of the community of states would permit secession. Historically, uti possidetis juris, both implicitly and explicitly, has prevented acts of self-determination and thereby secession under international law. In this instance, an act of self-determination and secession occurred.
The real question (instead of “where’s the outrage?”) is why now? Precedent dictated this act of independence should not have been permitted or occurred. We should remember Quebec failed before Kosovo succeeded, that Kosovo’s neighbors struggled with their acts of independence before the Balkan War in the 1990s, and other secessionist movements (e.g., Abkhazia) have persisted but have failed without the support or encouragement of the international community. So rather than question the deafening silence of the academic community as to its outrage, we should really be asking what are the implications for other secessionist movements around the world? Other failed states? And who’s thinking about those implications?
As for Kosovo being a creation of NATO, that’s historically incorrect. Kosovo is too historically symbolic and too truly Balkan to be the result of any international invasion. It is as much the creation of NATO as it is the Ottoman Turks who lost at the Battle of the Blackbirds, the cartographers at the Treaty of Versailles, and the negotiators at the Dayton Peace Accords who gingerly navigated its significance to the Serbs in seeking to create a new Balkan map.
Thanks for your points of view. They are very interesting. But I have the feeling that when we build impeccable legal reasoning, it’s always to justify some events that have happened outside our legal system and we don’t find there a solution. That means that we have to improvise answers to cover the new situation with some legal appearance that hides a lot of arbitrariness.
Kosovo, of course, is not a creation of NATO. But Kosovo, as an independent state, is a creation of arbitrariness. By the way, every argument we can use to justify the self-determination and secession of kosovars from Serbia can also be used by serbs in Bosnia or serb-kosovars to remain united to Serbia.
The difference? Kosovars are allowed to self-determinate. Serbs are not allowed. It’s arbitrariness, not justice.
Thasks and, please, excuse my bad English.
Dear Distinguished Sirs, I am not a jurist, but…in my layman’s view of Uti Possidetis Juris, the territories including the present Republic of Kosova were acquired by the kingdom of Serbia during the so-called “Balkan Wars” of 1912-1913 by military conquest. Once historical accounts which have been equated with “founding myths”-or mythology (tout court) are set aside, it could appear that the “property” in question, was, or “may have been,” stolen property. Were I a lawyer, I would be tempted to question the Serbian republic’s “automatic” seat in the UN as well. I wonder if this political instrumentalization by countries unable to arrest Mladic &Karadzic-etc., or who “brandish threats of a new cold war,” while feigning ignorance of their own dissidents assassinated abroad are worthy of the the audience they demand. As a Swiss citizen I would not be enthusiastic for my country’s participation in a European Union which includes the Serbian republic. I am optimistic that Switzerland will soon extend diplomatic recognition to the Republic of Kosova.
Will,
Julian raises a valid point with regard to the hypocrisy of those who support the notion of humanitarian intervention – even in the absence or a real threat to international security – and then cast aspersions on other extensions of the UN Charter with which they disagree. In my view, both preventive self-defense and humanitarian intervention (absent UN Sec Counc Ch. VII resolution based on an actual rather than perceived threat to international peace and security) must be viewed as illegal.
To those who think humanitarian intervention is illegal but justified, you should think seriously about the threat posed by allowing morality to justify violating the law. It always sounds like a good idea until the person wielding it has views of morality that are different from yours – you know – like the mantra that “saving American lives” is the ultimate moral justification for any action taken in the Global War on Terrorism.