Kosovo Independence is a “Defeat for International Law”

by Julian Ku

Or so says Professor (and sometime-guest blogger) Eugene Kontorovich in a recent op-ed.

As a result, NATO and America have become parties to the carve-up a sovereign state that they subdued by force. To say that this goes against the core principles of the U.N. Charter is an understatement. For international law, the entire process is a string of humiliations. The Security Council comes out looking like a joke; the right of self-determination looks like it depends on the product of a group’s ruthlessness and proximity to Europe; peacekeepers are hostages; and sovereignty is trumped by the threat of terror.

I am very sympathetic to Eugene’s critique here. At the very least, Kosovo is as much of, or even more, of a “defeat” for international law as the invasion of Iraq. Few people (Eugene excluded) seem willing to point that out.

http://opiniojuris.org/2008/03/20/kosovo-independence-is-a-defeat-for-international-law/

3 Responses

  1. Julian:

    If you think Kosovo’s secession is “as much of, or even more, of a ‘defeat’ for international law as the invasion of Iraq” then I think you need to make that case.

    Eugene doesn’t. He does seem to have two main points: Kosovo’s secession wasn’t approved by the Security Council and the West seems to generally be against accepting secessions, but they are not so here, and that seems inconsistent.

    The Security Council argument is a straw man. You do not need Security Council approval to secede. Although, if an attempted secession is clearly illegal, the Security Council may say as much–as was done regarding Northern Cyprus, but is not the case here. A people may attempt to secede but, depending on how clear their case is, it often becomes an issue of how many states recognize them. This decision to recognize may, for some states, be a proxy for whether or not a particular secession is considered justified or not. Kosovo is being recognized by more and more states each day.

    Speaking of the Security Council, though, SC approval is needed to invade another country, unless acting in self-defense. The U.S. clearly had neother a resolution nor a claim of self-defense when we went into Iraq.

    Second, while Eugene correctly states that “[the principle of] self-determination is no guarantee of independence,” he largely skips the legal analysis and simply states that the U.S. and Europe have been against secessions in other cases. Neither he nor you actually applies the legal principles and analyzes whether these are distinguishable cases. Realize, I do not think the Kosovars have a strong case for the privilege of external self-determination (aka secession, not succession, as Eugene unfortunately refers to it, confusing it with a similar, but different, legal principle). Rather, if one works through the state practice and the legal principles, this is a “tough case” that exists in a grey area, as I have argued in this ASIL Insight. It is neither clearly legal nor illegal and each side can make some credible arguments.

    And so, except in some vain attempt to excuse the Bush Administration, I don’t really see how one can say that a group making a (perhaps dubious to some but still relatively strong) claim that they meet the criteria for the privilege of secession can compare with the Adminsitration’s decision to invade a foreign country with neither the principle of self-defense nor a Security Council resolution to justify the action.

    Anyway, for the argument that “Kosovo is a bigger defeat to law that Iraq” (whatever that means) to be persuasive, then you need to actually engage with some of the sources and substance of international law on these issues. I’ve gone “on the record” with my analysis. What’s yours?

  2. Those, like Chris, who don’t see it problematic regard it as a secession, which I agree is an “internal” matter not much regulated by international law. I see it as a conquest (by NATO). If there were not NATO troops there, I would have no problem with this. Any other example I can think of is different on this score.

    Chris is surely right that attacking w/out SC approval is worse than seceding w/out such approval (which is not bad at all). But that’s exactly how we got into Kosovo in the first place, as I recall, and then it was retroactively papered over by the UN.

    Obviously legal labels matter, and to me it looks much more like an external power taking part of a country and handing it over to rebels it sympathizes with.

    I’m not looking to excuse the Bush administration anything: they’re big supporters and facilitators of Kosovo! I’m criticizing them!

    If Kurdistan declared independence while U.S. troops were there, and they held Iraqi forces back, I’d see it the same way.

    Let me suggest something else, beside the conquest/secession question, that may account for different reactions to Kosovo. The analogy would be to the “non-aggrandizement” idea in U.S. separation of powers jurisprudence. One approach to the separation of powers is “bright-line.” If Congress does something non-Congressional, that is automatically forbidden. Another view, most strongly held by Justice White, is that these things are only problems when one branch “aggrandizes” itself at the expense of the others. This allows for a more flexible balancing test.

    On paper, it is very hard for me to see Kosovo as less illegal than say, Iraq. However, there may be a sense that Kosovo was not “aggrandizement” for the West, i.e., was not part of this thing many feel of the U.S. throwing its weight around, making Dick Cheney’s friends rich, etc. (Of course the Serbs and Russians don’t see it that way, but I’m talking about international law professionals.)

    So if this is not part of “overbearing” U.S. policy, no problem. (This is somewhat like the humanitarian intervention argument, though I don’t think that has been explicitly extended to country carve-up.)

    Of course, the great thing about the non-aggrandizement principle in the Supreme Court is it is selectively applied. When the Court wants to strike down something, it takes a bright line approach (Chadha); strike it down — non-aggrandizement (Morrison; Mistretta).

  3. Eugene:

    Thanks for yourt reply. Here are some further thoughts stemming from your comments, which I have italicized and put in block quotes.

    “I see it as a conquest (by NATO). If there were not NATO troops there, I would have no problem with this.”

    Others have also queried whether the (probable) illegality of NATO’s 1999 bombing campaign affects Kosovar sovereignty. I do not think that it would. It does not directly affect the criteria that the international community has used in responding to secessionist claims (whether the secessionists are a “people”; that they have been—and perhaps will continue to be—subject to serious human rights violations; and that there is no other reasonable solution.)

    Moreover, even if NATO’s bombing was illegal, then the responsibility—and legal consequences—for that act would rest with the NATO member states, not with the Kosovars.

    However, it is also important to note that, regardless of one’s views of the legality of the NATO bombing campaign, the subsequent international administration of Kosovo was via the UN pursuant to a Security Council resolution (meaning Russia at least acquiesced). That Chapter VII resolution itself recognized the status of a humanitarian crisis and a threat to international peace and security, which bolsters the Kosovars’ argument regarding both the second and possibly third prongs of the test. (They still have a problem with the definition of “people,” in my view.)

    “it looks much more like an external power taking part of a country and handing it over to rebels it sympathizes with.”

    I see your point. But I think the cases of Kosovo and certain other recent attempted secessions can be distinguished on legal grounds. Just the fact that Kosovars were able to line up dozens of states from all over the world to support their claims of independence, prior to the declaration (though not all have officially recognized Kosovo as of yet) helps the argument that what is going on here might be something more than just hegemonial power politics. Though I don’t deny that is part of it. If anything, my point is that hegemonial power projection is easier when it is at least arguably legal then when it is not (Iraq). The result in Iraq being a coalition in name only and the withering away of support.

    “I’m not looking to excuse the Bush administration anything: they’re big supporters and facilitators of Kosovo! I’m criticizing them!”

    Sorry; my comment there was not directed at you. It was just my sporadic tweaking of Julian for a bit of fun.

    “The analogy would be to the “non-aggrandizement” idea in U.S. separation of powers jurisprudence.”

    I think this is an interesting analogy but, at the end of the day, I think the analysis needs to turn on the assessing the possible legality or illegality of each act. Non-aggrandizement theory works domestically against the background of the Constitution. It is ultimately a normative inquiry as to whether one branch in impermissibly encroaching on the powers of another. There is no normative measuring-stick when you apply it internationally. Rather, you ask whether a result does or does not increase the raw political power of a state. But I do not think that is the issue in resolving legal claims. Sometimes international law will be on your side and it may aggrandize your political power. Sometimes it will be against you and it may curtail your options. Either way, the law is what it is and you assess the material facts accordingly.

    By the way, I think the Russian view is that U.S. and EU recognition is aggrandizement (in the way you use it)—it is helping establish a U.S.-supported state in what had been the Russian backyard. But, as a matter of law, I think that is irrelevant to the question of whether the Kosovars had a legally justifiable claim.

    Thanks again for the response.

    Chris

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