Kosovo’s Declaration: Analyzing the Legal Issues of Secession and Recognition

Having already discussed the application of Security Council Resolution 1244, I will now turn to general principles of international law concerning secession and recognition.

Thomas Franck, one of the five international law experts asked by the Canadian government to consider certain issues regarding a hypothesized secession of Quebec, wrote that:

It cannot seriously be argued today that international law prohibits secession. It cannot seriously be denied that international law permits secession. There is a privilege of secession recognized in international law and the law imposes no duty on any people not to secede.

(emphasis in original)

International law, then, does not foreclose on the possibility of secession, but it does provide a framework within which certain secessions are favored or disfavored depending on the facts. The key, then, will be to assess whether or not, based on the facts, Kosovo meets the criteria for the legal privilege of secession.

According to the BBC, Russian Foreign Minister Sergei Lavrov said concerning Kosovo:

“We are speaking here about the subversion of all the foundations of international law, about the subversion of those principles which, at huge effort, and at the cost of Europe’s pain, sacrifice and bloodletting have been earned and laid down as a basis of its existence.

“We are speaking about a subversion of those principles on which the Organisation for Security and Co-operation in Europe rests, those [principles] laid down in the fundamental documents of the UN.”

The main principle he refers to is that borders should be changed only by agreement.

Lavrov’s statement is a bit of an oversimplification (but not by much). The concept of self-determination is actually comprised of two distinct subsidiary parts. The default rule is “internal self-determination,” which is essentially the protection of minority rights within a state. As long as a state provides a minority group the ability to speak their language, practice their culture in a meaningful way, and effectively participate in the political community, then that group is said to have internal self-determination. Secession, or “external self-determination,” is generally disfavored as it would conflict with the territorial integrity of the pre-existing state, if that state did not accept the secession.

The Supreme Court of Canada grappled with questions of self-determination and secession in re Secession of Quebec. The Canadian court found that:

[t]he recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even then, under carefully defined circumstances…

Reference re: Secession of Quebec, 2 S.C.R. 217 at para. 123 (1998).

So, unlike what Foreign Minister Lavrov says, it is not that international law denies any secession that does not come about by agreement of the parties. Rather, while issues of secession rarely receive formal adjudication, state practice does point the way to categorizing what are the “extreme cases” and “carefully defined circumstances” under which the privilege of secession exists. Based on state practice, court opinions, and other authoritative writings, any attempt to claim a legal secession—that is, where secession trumps territorial integrity—must at least show that:

(1) the secessionists are a “people” (in the ethnographic sense);
(2) the state from which they are seceding seriously violates their human rights; and
(3) there are no other effective remedies under either domestic law or international law.

I discuss this framework at greater length in this report.

Applying the framework to Kosovo, it is important to keep in mind that the situation in Kosovo is the result of numerous factors including the dissolution of a state (Yugoslavia), the general breakdown of a region, and the bad acts of the government of the pre-existing state (Federal Republic of Yugoslavia/ Serbia). The international administration of Kosovo, due to the humanitarian disaster that was being caused by the government of Serbia in 1999, is also of crucial importance. These factors play a part in making the relevant facts, and thus the legal analysis, in the case of Kosovo different from those of separatist conflicts in Georgia and Moldova, for instance.

The first issue is whether the Kosovar Albanians are a “people.” While there is an open question as to whether the Kosovar Albanians are a nation unto themselves, they are clearly a distinct people from the Serb majority of the rest of Serbia. While this may weaken the case of a legal right to external self-determination, it is nonetheless much stronger than, say, arguments by Transnistrians for secession as they clearly are not a “people” as the term is currently defined in international law.

Regarding the second prong, there is a credible argument that the Serbs were responsible for serious human rights abuses against the Kosovars (or a “grave humanitarian situation” and a “threat to international peace and security” in Res. 1244’s wording), culminating in nascent ethnic cleansing which instigated NATO’s intervention.

As for whether there is a reconciliation possible such that secession from Serbia is not the only option, the political situation prior to the declaration of independence had collapsed. The US/ EU/ Russian troika had reported back to the UN in December 2007 that dialogue had failed. While one can always hold out for hope of a negotiated solution, the positions did not seem reconcilable and there seemed to be a real concern as to whether the Albanian Kosovar community and the ethnic Serbian community would coexist peacefully within a single political entity.

I also think that one other important factor is that Kosovo is transitioning from a period of international administration. It is significant that, although Serbia has had de jure authority over Kosovo since 1999, the territory has actually been under international administration because the situation was considered so volatile. A question of whether or not to reintegrate into the pre-existing state a territory that the international community had found necessary to administer is a different situation than assessing a claim by a separatist group that, on its own, is seeking to overturn the authority of the pre-existing state and unilaterally secede. By the way, whether or not the NATO bombing campaign was illegal, as some have argued, is actually beside the point as the international administration of Kosovo was due to a subsequent Security Council Chapter VII resolution (Res. 1244, discussed in my previous post) that set the process for what was to come.

That being said, this does not necessarily mean that Kosovo’s secession is “legal.” Rather, I hope this shows that under the basic framework provided by international law there are arguments that can be made in either direction. I think this is the quintessential “tough case.” In difficult situations such as these, the issue of legality often shifts from the question of “Is it legal to secede?” to “Is it legal to recognize such a secession?” A subtly different, but nonetheless a different, question. As Daniel Thurer put it (perhaps overstating the case) in his 1998 addendum to the entry on “Self-Determination” in the Encyclopedia on Public International Law,

Rather than formally recognizing a right of secession, the international community seems to have regarded all these processes of transition as being factual rearrangements of power, taking place outside the formal structures of international law: international law only became subsequently relevant within the context of recognition.

The EU memorandum concerning Res. 1244 discussed in my previous post also stated the following concerning recognition:

“Generally, once an entity has emerged as a state in the sense of international law, a political decision can be taken to recognise it.”

This reflects the general understanding that recognition itself is not a formal requirement of statehood. Rather, recognition merely accepts a factual occurrence. Thus recognition is “declaratory” as opposed to “constitutive.” Nonetheless, no state is required to recognize an entity claiming statehood.

To the contrary, a good argument may be made that states should not recognize a new state if such recognition would perpetuate a breach of international law. The treatise Oppenheim’s (Ninth), Sec. 54, states that “[r]ecognition may also be withheld where a new situation originates in an act which is contrary to general international law.” The Restatement (Third) of Foreign Relations Law of the U.S., Sec 202(2), explains that

A state has an obligation not to recognize or treat as a state an entity that has attained the qualification for statehood as a result of a threat or use of armed force in violation of the United Nations Charter.

The BBC reports that:

In Russia and Serbia’s view, since there is no agreement [by Serbia to change its borders], there should be no recognition.

But, absent any qualification, that cannot be legally correct. Changing the boundaries of a sovereign state (Serbia) in and of itself would not make Kosovar independence illegal as the international community has come to accept secession under certain circumstances (discussed above).

Moreover, even acts that were illegal at the outset:

may eventually acquire legal status if, as a matter of empirical fact, it is recognized that through a combination of acquiescence and prescription, an illegal act may at some later point be accorded some form of legal status. In the law of property, for example, it is well known that a squatter on land may ultimately become the owner if the true owner sleeps on his right to reposess the land. In this way, a change in the factual circumstances may subsequently be reflected in change in legal status. It is, however, quite another matter to suggest that a subsequent condonation of an initially illegal act retroactively creates a legal right to engage in the act in the first place. The broader contention is not supported by the international principle of effectivity or otherwise and must be rejected.

Reference re: Secession of Quebec, at para. 146.

For that argument to work here, one would need to conclude that, although Serbia maintains a claim to Kosovo, some relevant portion of the international community treats Kosovo as a state and it is effectively operating as one. (This, in part, draws on the declaratory role of recognition.) While some argue that the ongoing objection of a predecessor state (Serbia) should prevent any third-party state from recognizing a secession, the U.S. (as well as other countries, I believe) has consistently argued that such recognition is not required as a matter of law. Thus, the U.S. has held the view that despite the objections of the predecessor state, the international community can recognize a secession.

More generally, state practice evinces that in matters of state recognition there is, absent a clear indication of illegality, deference to the political process of each state as to whether or not to recognize an aspirant state. For an example of the international community indicating illegality, the Security Council issued a resolution against the recognition of the Turkish Republic of Northern Cyprus. There is no such resolution here. To the other extent, there seems to be a rising tide of acceptance. Is this a legal rule? No. It is simply a realization that, in cases of secession, law and politics are especially tightly intertwined.

In the end, I have no quick answer regarding whether or not Kosovo’s declaration of independence is legal or illegal. As explained in my previous post, I am skeptical of arguments that Resolution 1244 would prohibit Kosovo from becoming sovereign. However, I am also aware that the international law of self-determination has a bias against secession. (It is a bias that I think is well justified.) Nonetheless, I do think there is a real and credible argument to be made that Kosovo’s declaration does not offend international law and, similarly, neither does the recognition of Kosovo by the United States or other third party states.

If we take as a given that secession is not utterly prohibited by international law, then the case of Kosovo presents a set of facts that I think are quite persuasive: an ethnic group (though perhaps not a “nation”), within a region with historically defined boundaries (Kosovo as a province), after an international intervention to prevent a humanitarian disaster being caused by the predecessor state, and after years of negotiations with the predecessor state leading to a complete deadlock, seeks independence via a declaration that is coordinated with, and supported by, a large segment of the international community (supposedly 100 states had indicated that they would recognize Kosovo).

It is a situation that I think provides an apt counterexample to specious claims for a “right” to secede, such as those of Transnistria, which due to different material facts would fail under the same legal framework.