Tony Arend’s Legal Analysis of Kosovo’s Declaration and Defining a “People”

Professor Tony Arend of Georgetown has posted a legal analysis of Kosovo’s declaration.

Tony considers some of the same analytic territory I cover in this post and this post (Res 1244, the Quebec case, the defintion of a “people,”) and his whole post is well worth the read. I will focus on one point of Tony’s analysis, in which he touches on a particularly difficult issue in the Kosovo case.

He writes:

I believe that international law seems to acknowledge that a “people” is a group of individuals that believe themselves to be a people, typically based on some perceived common characteristics. These characteristices include such things as: language, culture, religion, race, ethnicity, and history. Note: what I am suggesting here is that a people is a constructed identity.

Defining “people” for pursposes of self-determination has been a tricky task.

In the phrase of the Canadian Supreme Court from the Secession of Quebec opinion, the meaning of “peoples” is “somewhat uncertain.” At various points in international legal history, the term “people” has been used to signify citizens of a nation-state, the inhabitants in a specific territory that is being decolonized by a foreign power, or an ethnic group. The Aaland Islands report also added that, for the purposes of self-determination, one cannot treat a small fraction of people as one would a nation as a whole. Thus, the Swedes on the Aaland Islands, who were only a small fraction of the totality of the Swedish “people” did not have a strong claim for secession in comparison to, for example, Finland, when it broke away from Russian rule since Finland contained the near totality of the Finnish people.

It is true that some are not happy with this older definition of the word “people,” as they find it too restrictive. Consequently, I think that the open question (which it is still too early to answer) is whether widepsread support of Kosovo’s independence signals a shift in defining “peoples” so that it no longer has to represent a complete ethnic nation but can be used to refer to a homogenous ethnic enclave within another nation (Serbia, in this case).

Regarding the claim of the Kosovars, Tony concludes that:

As noted earlier, there is no precise defintion of people under international law. Instead, it seems to mean a group that preceives itself to be a people based on certain common characteristics. This defintion would seem to cover the Kosovars. An overwhelmingly ethnic Albanian, Muslim group, they seem to me to perceive themselves to have a common bond.

Note that this would run afoul of the Aaland Islands interpretaion of “people,” assuming that the Kosovar Albanians are not a different ethnicity from Albanians in general. Although I am in complete agreement that, as a matter of political psychology, being a “people” is a constructed identity, as a matter of international law, though, it is a technical term that the international community has chosen to apply narrowly for reasons of systemic stability. Defining people as a “colony” or as an ethnographic nation significanlty limits the number of possible cases with credible arguments for the privilege of secession. (I argue this at greater length in a forthcoming article in the Oregon Review of International Law.)

This is not just legalese; it is pragmatic. Extending the defintion of the term “people” to allow broader self-defintion could make it difficult to distinguish between cases of secession ranging from Finland (an ethnically homogenous nation) to Kosovo (an ethnically homogenous enclave, though not necessarily a nation) to Transnistria (a mutli-ethnic territory that its leaders claim to be “like-minded”). The classic defintion of “people” only encompasses secession of the first type of case. I query whether it is changing to include the second type. (And even this might be a stretch, see Marko Milanovic’s comments to my previous post.) But I see no support in state practice for it going any further.

Perhaps concern over inadvertant expansion of this defintion is one of the reasons the U.S. and the EU are arguing so strenously that Kosovo is a unique case. I’ll assess tthe “uniqueness versus precedent” argument at greater length in post.