Kosovo's Declaration of Independence: Self-Determination, Secession and Recognition

Introduction

On February 17, Kosovo's parliament declared Kosovo's independence from Serbia.[1] Following that declaration, the U.S. and several European states officially recognized the independence of Kosovo. An examination of Security Council Resolution 1244, which set forth the international oversight of Kosovo following the 1999 NATO intervention, and the international law of self-determination, secession, and recognition demonstrates that while Kosovo's declaration of independence and its recognition by various states can be justified under existing international law, it is not a clear case. Rather, Kosovo presents a quintessential "tough case," demonstrating the ways in which political interests of states affect how the international law is given effect. How and whether it will be considered a unique case in international law or a precedent for other secessionist movements may depend on how various states interpret the law and facts that gave rise to the declaration. Questions concerning Kosovo's status within international organizations and its succession to rights and obligations of Serbia remain open.

1. Background

Within the former Socialist Federal Republic of Yugoslavia (SFRY), Kosovo was an autonomous province within the Republic of Serbia. The ethnic make-up of Kosovo is majority Albanian with a Serb minority. Kosovo's special autonomy was ended by Slobodan Milosevic in 1989. In 1991 and 1992, Slovenia, Croatia, Macedonia, and Bosnia, four of the six republics of the SFRY, declared independence. In 1992, the Federal Republic of Yugoslavia (FRY) succeeded the SFRY, and in 2003, the FRY was succeeded by the federation of Serbia-Montenegro. In 2006, Montenegro declared independence in accordance with the law of Serbia-Montenegro. Serbia declared itself the successor to Serbia-Montenegro later that year.

Throughout the 1990s, Kosovar Albanians sought restored autonomy for Kosovo or independence. In 1998, the Serb government initiated police and military actions in the province, which resulted in widespread atrocities. After failed political negotiations to resolve the status of Kosovo and the rights of the Kosovar Albanians, NATO launched an air campaign to force the Serb government to withdraw the police and military. In the aftermath of NATO's intervention, the UN Security Council passed Resolution 1244 (1999)[2] , which authorized the UN's administration of Kosovo and set out a general framework for resolving the final political and legal status of Kosovo. For the next nine years, the UN participated in the administration of Kosovo, while political negotiations over the final status of the territory were largely inconclusive.

In November 2005, the Secretary General appointed Martti Ahtisaari Special Envoy for Kosovo. After mediating negotiations between the parties for fifteen months, Ahtisaari submitted in March 2007 the Comprehensive Proposal for the Kosovo Status Settlement ("the Ahtisaari Plan"). The plan envisioned Kosovo becoming independent after a period of international supervision. Serbia rejected the Plan while the Kosovar Albanian leadership endorsed it.

In an effort to revive the mediation process, the EU, Russia, and the U.S., (the "Troika") oversaw negotiations between the Government of Serbia and the Kosovar Albanians, from August to December, 2007. In a response to the Secretary General, the Troika reported on December 10, 2007:

[T]he parties were unable to reach an agreement on the final status of Kosovo. Neither party was willing to cede its position on the fundamental question of sovereignty over Kosovo.[3]

In the aftermath of the Troika's announcement of the collapse of negotiations, Serbia, Russia, Romania, Moldova, and Cyprus -- countries grappling with some type of secessionist issue in their own domestic politics -- argued that Kosovo's secession and/or recognizing that secession would be a breach of international law.[4] Similar concerns were expressed at the time by Greece, Slovakia, and Spain. Kosovar independence was supported by the U.S., the U.K., France, Italy, and Germany, and most of the other states of the EU.

On February 17, the Parliament of Kosovo issued a statement declaring "Kosovo to be an independent and sovereign state."[5] The Parliament pledged compliance with the process envisioned in the Ahtisaari Plan.

On February 18, U.S. Secretary of State Condoleezza Rice announced that the U.S. "formally recognized Kosovo as a sovereign and independent state."[6] France, the U.K., Germany, and other EU member states have either recognized Kosovo's independence or are in the process of doing so.[7] At the time of this writing, seventeen states have formally recognized Kosovo and another thirteen have begun proceedings to do so. Eighteen countries have announced that they do not recognize the secession, twelve states have asked for further negotiations, and twenty-nine states have unclear positions.

2. Assessing Resolution 1244

The operative paragraphs of Resolution 1244, which the Security Council had enacted as a framework for resolving the status of Kosovo, focus on the cessation of military and paramilitary activities by all parties and the commencement of demilitarization of armed groups (paragraphs 3 and 15), the establishment of an international civilian presence under UN auspices to assist in interim administration (paragraphs 5 through 11), the commencement of international financial assistance to Kosovo, and setting out ongoing reporting requirements. In addition, Annex 1 to the resolution lists "general principles on the political solution to the Kosovo crisis" adopted by the G-8 foreign ministers in May 1999, and Annex 2 lists general principles on which there should be agreement in order "to move towards a resolution of the Kosovo crisis."[8]

Serbia and Russia have argued that Resolution 1244 would not allow the secession of Kosovo without the agreement of Serbia. In particular, they refer to the resolution's preambular language "[r]eaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia ."

The EU has taken the position that Resolution 1244 is not a bar to Kosovo's independence. In a memorandum written prior to approving the EULEX legal assistance mission to Kosovo, it found that "[a]cting to implement the final status outcome in such a situation is more compatible with the intentions of 1244 than continuing to work to block any outcome in a situation where everyone agrees that the status quo is unsustainable."[9] Moreover, the EU contends that 1244 did not predetermine the outcome of final status talks.

On balance, it appears that Resolution 1244 neither promotes nor prevents Kosovo's secession. Although operative paragraph 1 of Resolution 1244 states that a political solution shall be based on the principles of Annexes 1 and 2, those annexes are silent as to the governmental form of the final status. The annexes only state that an "interim political framework" shall afford substantial self-governance for Kosovo and take into account the territorial integrity of Federal Republic of Yugoslavia. Paragraph 11(a), states that the international civil presence will promote "the establishment, pending a final settlement, of substantial autonomy and self-government in Kosovo..."[10] The substantial autonomy language is thus addressed to the interim status of Kosovo. Moreover, the references to the territorial integrity of Serbia are only in the preambular language and not in the operational language. The document is therefore silent as to what form the final status of Kosovo takes.

3. International Law and Secession

In addition to Resolution 1244, Kosovo's independence can be assessed under the international law of secession. 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.[11]

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

The legal concept of self-determination is 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. In re Secession of Quebec, the Supreme Court of Canada found that "[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?" [12]

Although issues of secession rarely receive formal adjudication, state practice, court opinions, and other authoritative writings, point the way to categorizing what are the "extreme cases" and "carefully defined circumstances" under which the privilege of secession exists. Any attempt to claim 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.[13]

(a) Are the Kosovar Albanians a "people?" As the Canadian Supreme Court put it in the Secession of Quebec opinion, the meaning of "peoples" is "somewhat uncertain."[14] 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 being decolonized by a foreign power, or an ethnic group. The commission of jurists who arbitrated the status of the Aaland Islands in 1920-21 found 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, which, when it broke away from Russian rule, contained the near totality of the Finnish people.

One may argue that the Kosovars are a "people", having inhabited Kosovo for centuries. However, the Kosovar Albanians are more generally perceived as an Albanian ethnic enclave, rather than a nation unto themselves.

This definition of the word "people" as "nation" has been criticized for being too restrictive. Consequently, it remains an open question whether widespread support of Kosovo's independence would signal a shift in the definition of "people" so that the term no longer represents a complete ethnic nation but can be used to refer to a homogenous ethnic enclave within another nation.

(b) Are there/were there serious human rights violations? The Aaland Islands report found that there was no right to secede absent "a manifest and continued abuse of sovereign power to the detriment of a section of population."[15] Here, there is at least a credible argument that the Serbs were responsible for serious human rights abuses against the Kosovars, as Resolution 1244 notes, a "grave humanitarian situation" and a "threat to international peace and security". It was mass human rights abuses that led to NATO's 1999 intervention. (It should also be noted, however, that human rights abuses have been reported to have been committed by Kosovar Albanians as well.) To the extent the international community considers it relevant whether human rights abuses are ongoing or historic, the situation in Kosovo is ambiguous. In relation to this question, one may argue that the ongoing international presence in Kosovo is legally relevant as it is evidence of the international community's determination that the situation in Kosovo was and is highly volatile and that it cannot be solved completely via domestic political structures.

(c) Is secession the only solution? The political situation prior to the declaration of independence did not appear to offer any realistic alternatives to secession. As of December 2007, the two sides could not seem to resolve their differences and the Troika has declared the political negotiations a failure. It is unlikely that anything short of military intervention could have kept Kosovo within Serbia. Thus, it appears that most, if not all, realistic options other than separation had failed.

As should be clear from this analysis, the basic framework provided by international law permits arguments for and against secession. This is the quintessential "tough case." In the interest of systemic stability, international law has a bias against secession. However, if we take as a given that secession is not absolutely prohibited by international law, then the case of Kosovo presents a set of facts that may be 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 negotiations with the predecessor state leading to a complete deadlock, that seeks independence via a declaration that is coordinated with, and supported by, a significant segment of the international community. It thus stands in contrast to other claims of a "right" to secede, such as those of Transnistria, which due to different material facts would fail under the same legal analysis. [16]

4. The Law and Politics of Recognizing Kosovo's Declaration

In difficult situations such as these, the issue of legality often shifts from the question of the legality of secession, to the question of the legality of the recognition of secession, a subtly different, but nonetheless different, question.[17]

The EU memorandum on Resolution 1244 contends that "[g]enerally, once an entity has emerged as a state in the sense of international law, a political decision can be taken to recognise [sic] 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."[18] Russia and Serbia argue that, inasmuch as Serbia did not consent to an alteration of its territory and borders, there can be no legal recognition. But, absent any qualification, that argument cannot be legally correct. Changing the boundaries of a sovereign state (Serbia) in and of itself would not make Kosovar independence illegal because, as discussed above, the international community has come to accept the legality of secession under certain circumstances.

Furthermore, the self-determination analysis is very fact specific, such that absolute arguments of illegality become difficult. And, state practice evinces that, absent a clear indication of illegality, in matters of state recognition there is considerable deference to the political prerogatives of outside states to decide whether or not to recognize an aspirant state. For an example of the international community indicating illegality, the Security Council issued a resolution condemning the recognition of the Turkish Republic of Northern Cyprus. There is no such resolution here, but rather a growing momentum to accept Kosovo's declaration. This does not, in and of itself, make Kosovo's secession legal. But it does show that, in cases of secession, law and politics are especially tightly intertwined.

5. Is Kosovo Unique? Implications for Other Secessionist Claims

Given the ambiguity of the claim of a legal privilege of secession and the fairly broad leeway that states have to recognize Kosovo, should they choose to do so, is the example of Kosovo of legal relevance to other separatist conflicts, such as those in Abkhazia, South Ossetia, Nagorno-Karabakh, and Transnistria? Or is Kosovo sui generis and of no precedential weight? In announcing the recognition of Kosovo by the United States, Secretary of State Rice explained:

The unusual combination of factors found in the Kosovo situation - including the context of Yugoslavia's breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration - are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as precedent for any other situation in the world today.[19]

By contrast, the Russian Duma issued a statement that read, in part:

The right of nations to self-determination cannot justify recognition of Kosovo's independence along with the simultaneous refusal to discuss similar acts by other self-proclaimed states, which have obtained de facto independence exclusively by themselves.[20]

Moreover, Bosnian Serbs had earlier stated that, should Kosovo declare independence, they would seek independence for "Republika Srpska," the self-proclaimed Bosnian Serb ethnic enclave within Bosnia.[21] (The Badinter Commission had previously rejected such a claim as a matter of international law.)

It can be argued that Kosovo is different from other secessionist claims because Kosovo has been under international administration as the international community considered the situation so volatile. Reintegrating such a territory is different from 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. While secessions are primarily an issue of domestic law, Resolution 1244 internationalized the problem. It also moved Kosovo from being solely under Serbian sovereignty into the grey zone of international administration.

This is a highly controversial position. Various reactions to the "uniqueness" argument include that such a contention is "absurd" or that it is an esoteric legal point that will be forgotten in the rush of politics.

It may, however, be possible to argue that Kosovo is both unique and a source of precedent at the same time. Two reasons are cited for Kosovo's uniqueness: (1) Kosovo has been under international administration since 1999; and (2) the Kosovar Albanians are an ethnically homogenous enclave, physically separate and ethnically different from the Serbs.

Let us assume that the first point, international administration, is persuasive and makes Kosovo a special case. Nonetheless, Kosovo can still be cited by other separatists as precedent for the specific issue of how the international community defines a "people" for the purpose of self-determination. And it would be irrelevant whether or not Kosovo had been under international administration. As mentioned above, the term has been difficult to define, but modern state practice has tended to treat a "people" as a complete ethnic nation (not just a fragment of a larger ethnic group that exists elsewhere). However, those arguing that secession is legal in the Kosovo case seem to be defining people as a homogenous ethnic enclave. In other words, unless those recognizing Kosovo's declaration claim that the Kosovar Albanians are an ethnicity unto themselves, as opposed to just part of the Albanian ethnic group, then they may well be changing what had been the most common definition as to who may claim the privilege of secession.

If that is the case, then the international community may be creating precedent that we will see cited by other ethnic enclaves seeking separation, be they Russians in Abkhazia or Krajina Serbs. Previously, neither of these groups was viewed as having a strong claim for the privilege of secession, as neither of these groups is a "nation" in the ethnographic sense, but rather fragments of Russian or Serb ethnic groups. But their arguments may be strengthened, and one of the bulwarks of international law against facile secessions may be weakened, if the facts of the Kosovo claim are not carefully and narrowly construed.

Despite the declarations and best intentions, just saying something is "unique" may not be enough. States and commentators may need to ask why one claim of independence is purportedly unique and then consider its downstream political and legal effects. In the end, we need to keep in mind that sometimes the most effective law in politically-charged situations may be the law of unintended consequences.

About the Author
Christopher J. Borgen, an ASIL Member and former Director of Research and Outreach of the ASIL, is an Associate Professor of Law at St. John's University School of Law. He is a co-founder of the weblog Opinio Juris, www.opiniojuris.org. From 2004 -2006 he served on a legal assessment mission concerning the attempted secession of Transnistria from Moldova.

Footnotes