Monday, February 18, 2008

Kosovo's independence: Does legality matter?

Serbia, Spain, and other states opposed to the independence of Kosovo argue that its unilateral declaration of statehood is illegal under international law. (Prior posts here, here, and here; map credit.)
Those supporting Kosovo’s independence, including the United States, don’t seem to disagree. Rather than arguing that Kosovo’s declaration can be reconciled with principles of territorial integrity, they contend that Kosovo is sui generis and therefore “does not set a precedent.” In other words, no, it isn’t legal, but not to worry, it won’t happen again.
Certainly Kosovo is in some ways unique. Those making the sui generis argument point to the break-up of Yugoslavia, Security Council Resolution 1244 (1999), and the long period of UN administration as distinguishing features. Basing a claim to independence on UN intervention is in some ways reassuring, as any nascent polity receiving such intervention must have considerable international support. It is in other ways disturbing, suggesting that the decisive factor in determining the legitimacy of claims to sovereignty is not the freely expressed will of the people but the will of the international community -- not self-determination but UN-determination.
In any event, there are a lot of independence-seekers in the world who are hoping that they too are sui generis, and it won’t be long before they begin to put the question to the test. The New York Times reports that South Ossetia and Abkhazia, independence-seeking regions in Georgia, have indicated that they will ask for recognition from Russia, which has long supported them, based on the Kosovo (non-)precedent. (map credit)

3 comments: said...

It seems to me that the country of Yugoslavia was created by the international community in the first place, so perhaps having them participate in the destruction of it is somehow fitting. It is going to be really interesting to see how this plays out with other "artificially" created states, both in Eastern Europe and the Middle East.

Patrick S. O'Donnell said...

Balkinization may indeed turn out to be a dangerous slippery slope.

At the risk of being pedantic or patronizing (or both!) may I suggest we carefully examine two chapters from Allen Buchanan's brilliant book, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004): Ch. 8, "Self-Determination and Secesssion," and Ch. 9, "Intrastate Autonomy." I think Buchanan provides us with a legal and moral argument, hence the relevant criteria, for assessing the merits (or lack thereof) of the Kosovo case for sovereign statehood. For a taste of his argument, I quote from the beginning of the former chapter:

"Two main theses are advanced. (1) International law should recognize a remedial right to secede but not a general right of self-determination that includes the right to secede for all peoples or nations. From the standpoint of international law, the unilateral right to secede--the right to secede without consent or constitutional authorization--should be understood as a remedial right only, a last-resort response to serious injustices. Accordingly, the international legal order should support states' efforts to preserve their territorial integrity so long as they do a credible job of promoting basic human rights, but deny that states have a right to suppress secession when secession is a remedy of last resort against serious injustices. In affirming a remedial understanding of the right to secede, international law should unambiguously repudiate the nationalist principle that all nations (or 'peoples') are entitled to their own states. (2) The international legal order should encourage alternatives to secession, in particular by working for greater compliance with existing international human rights norms prohibiting ethno-national and religious discrimination and in some cases by supporting intrastate autonomy regimes, that is, arrangements for self-government short of full sovereignty. Restricting the unilateral right to secession to cases of severe and persisting injustices would encourage states to take a more flexible stannce toward intrastate autonomy arrangements, because it would dispel the fears of a slippery slope toward state-breaking that a general right of self-determination for all peoples or nations understandably evokes."

I hope a taste of Buchanan's argument prompts the desire to sit down to a full-course meal.

Squid said...

Taiwan was among the first to recognize Kosovo as an independent state. This wrankled the leaders of across the strait in the PRC.

Another interesting case study is that of the Ogaden region of Ethiopia, which encompasses a large pastorial area bordering Somalia, populated primarily by ethnic Somalis. Article 39 of the Ethiopian constitution provides a process by which a region may gain autonomy or secede.

Following the constitutional path, a movement in Ogaden sprang up shortly after independence, promoting autonomy for Ogaden, and leaving open the possibility of secession. In 1995, Ethiopian President Zenawi used extra-constitutional means to undo election results that were favorable to the Ogaden autonomy movement. The crisis caused the movement to splinter with "hawks" forming the Ogaden National Liberation Front (ONLF).

An ONLF insurgency against Ethiopian forces simmered in the Ogaden region for years, with little international attention. In 2007, ONLF asserted that Ethiopia could not grant rights for petroleum exploration/production in Ogaden and threatened to attack any such work that was not approved by the ONLF. In spite of the threat, Ethiopia granted exploration rights to foreign petroleum companies in Ogaden.

April 2007, ONLF attacked Ethiopian forces providing security for a Chinese petroleum drilling operation in Ogaden. Ethiopian forces were overrun, resulting in scores of deaths among Etiopian forces and a few deaths of Chinese personnel. Ethiopia responded swiftly with a brutal military operation that cut off Ogaden and employed brutal tactics intended to crush the ONLF. NGOs (including the Red Cross) were thrown out of the region, so the facts are murky, but it is clear that the people of Ogaden have suffered greatly at the hands of both Ethiopian and ONLF forces. (Reuters: (US Dept of State Testamony on Ogaden insurgency and Ethiopian reaction:

This case study is an example that the concept of promoting intra-state autonomy as an alternative to secession, as suggested by Mr. O'Donnell (referencing Allen Buchanana's book) has its limits.

National governments may be unwilling to allow intra-state autonomy, even if permitted by their constitutions based on the rationale that if they give an inch (autonomy) the troublesome region would soon take a mile (secession).

A second order effect of such events would be that other regions would be inspired to follow suit (e.g. If Taiwan declares independence, Tibet and other regions might soon follow).

A third order effect could include cross-border military action by countries concerned by internal unrest inspired by autonomy seeking or secessionist groups in neighboring countries (e.g. Turkey's incursions into Iraq aimed at the PKK). Similarly, countries seeking to stamp out internal autonomy/secession movments might attack neighboring countries thought to be supporting such movements (e.g. Ethiopia's attack against Somalia's Islamic Courts, who were thought to be supporting the ONLF)

It would seem that intra-state autonomy is least likely to work in countries that score high on the "Failed States Index" (
Ethiopia, Iraq and China fall into this category.