What the Kosovo ruling means for Canada: trouble
The true impact of the World Court's decision will be on separatist groups outside of Serbia that now have a model for how to declare independence.
(Milan Markovic, The Globe and Mail) Monday, August 02, 2010
After the International Court of Justice ruled that Kosovo's declaration of independence was not prohibited by international law, I expected Serbs to react with anger. In truth, the reaction was one of indifference. There were no protests in Belgrade or histrionics by Serbian politicians.
The muted reaction was appropriate. International lawyers agree that last week's decision is mostly notable for what it doesn't do. The World Court purposely sidestepped difficult questions such as whether the declaration brought about Kosovo's secession from Serbia and whether nations such as Canada and the United States were legally justified in recognizing an independent Kosovo. The court ruled only that declarations of independence made by separatist groups are not contrary to international law.
The World Court's decision has been hailed by Kosovo's government, but the ruling does not require other countries to recognize Kosovo as an independent state. Russia, China and Spain have already said they will continue to treat Kosovo as a part of Serbia. The true impact of the court's decision will be on separatist groups outside of Serbia that now have a model for how to declare independence. Quebec separatists, in particular, can be expected to embrace the decision.
The Harper government has long sought to distinguish Kosovo and Quebec. Maxime Bernier, as minister of foreign affairs, initially justified Canada's recognition of Kosovo by claiming that human-rights violations in the territory made it a "unique case." This claim simply does not withstand scrutiny after the World Court's ruling.
The court gave no consideration to Serbia's treatment of Kosovo's Albanian population. It noted only that there were radically different views on whether international law allows for secession on the basis of a state's violation of human rights, as well as whether Kosovo was such a case.
What the court did find was that secessionist groups are not obligated to respect the territorial integrity of the country from which they are trying to secede. Nor are they prohibited from unilaterally declaring independence against the will of that country. What, then, is to stop Quebec's National Assembly from declaring the province's independence without holding a fair referendum as Quebec is supposed to do under the Clarity Act?
Few countries are likely to recognize an independent Quebec that tries to separate in such a manner. Indeed, there is arguably an obligation on the part of other nations to not recognize a unilateral secession by Quebec, although the World Court's decision provides no insight into this question. Nevertheless, Quebec separatists may calculate that their energies are better directed at lobbying for recognition from individual nations than trying to comply with the Clarity Act.
Moreover, if Canada were to criticize Quebec for failing to adhere to the Clarity Act, Quebec could point out that Kosovo never even held a referendum in advance of declaring its independence. Its leaders could ask: Why must we not only hold a referendum but also allow the House of Commons to approve the referendum question and certify that the referendum result constituted a clear vote for independence?
The Kosovo precedent also undermines the notion that Quebec must seriously negotiate its separation from Canada. Under the administrative scheme established by the United Nations Security Council, representatives from Serbia and Kosovo were required to negotiate Kosovo's final status. The negotiations were fruitless, leading Kosovo to declare its independence. But Kosovo's representatives indicated from the beginning of negotiations that they would not settle for anything short of full independence and would not tolerate any partition of Kosovo's territory. Quebec's leaders may be tempted to take a similar line and declare Quebec's independence if Canada refuses to acquiesce to these unfavourable terms.
The Harper government's unconditional recognition of Kosovo has left Canada in an extremely difficult position. Whereas other countries that face secessionist threats and have refused to recognize Kosovo can maintain - consistent with the World Court's decision - that a unilateral declaration of independence does not have the effect of creating an independent state, Canada must somehow reconcile its acceptance of Kosovo's secession based on such a declaration with its claim that a similar action by Quebec would be contrary to international law.
After the court's Kosovo decision, it is naive to believe that the Clarity Act will prevent Quebec from unilaterally declaring its independence from Canada. Quebec separatists will only be dissuaded from such a course of action if the international community expresses its support for the Clarity Act. Thus, the federal government must continue to work to solicit this support. Canada should also be more prudent in recognizing independence movements in the future. As noble as it may be to support the desire of other peoples for self-determination, Canada should not again needlessly weaken its position with respect to Quebec.
Milan Markovic, a New York-based lawyer, is a teaching fellow at Temple University's Beasley School of Law in Philadelphia.
