Kosovo - a classical case of illegal secession

The present status of Kosovo within international relations is determined by a series of unilateral acts: the declaration of independence made by the provisional institutions of self-government in the province, as well as by a series of unilateral recognitions by 60 states so far, 22 of which are members of the EU. The fact that more than 130 counties of the World have not recognised the independence of Kosovo, and that not a single international organisation has done so either, emphasises the fact that the international status of Kosovo remaions vastly controversial. More than that, it indicates that a series of breaches of international law were committed prior to these aforementioned unilateral acts.

Nonetheless, many politicians and academics assert that the declaration of independence and the consequent acts of recognition were compatible with international law and in particular with UN Security Council Resolution 1244 of 10 June 1999.  Even so, it is impossible to deny that unilateral acts did take place and that this at least challenges the legal status of the said acts.

First, both the provisional institutions in Kosovo and the recognising states acted unilaterally, i.e. outside the parameters of any document, decision or recommendation of the United Nations which had until that moment taken over international responsibility for Kosovo.

Second, Serbia as the internationally recognised state has continuously been acting against such unilateral acts and in favour of its sovereignty and territorial integrity.

Third, the whole operation of proclaiming independence and then obtaining recognition of it was based on the so-called Comprehensive Porposal for the Kosovo Status Settlement which is an internationally informal and illegal document.

All these three facts are a testimony to the fact that the proclamation and recognition of Kosovo's independence took place in disregard of international law.

I am not going to discuss in this paper whether the decisions on proclamation and recognition will one day be transformed from their present illegal status to a future legal one.  In spite of such fait accompli politics, Kosovo remains Europe's most pressing problem and without doubt the main problem in its South Eastern region.  This province has been under the civilian and military administration of the United Nations since 10 June 1999.  The administration was set up to prevent open clashes between Serbia and Albanians and to create the conditions for a resolution to the conflict.  The duration and the seriousness of the conflict induced the world organisation and many other international actors to establish a presence in the region with a view to promoting stability and a final solution to the problem.  This could be done only within the framework of international law and according to its principles, norms and customs.  Yet instead of that, we have obtained one of the worst precedents in the world - a precedent which implies that the very framework of international politics is changing with respect to the very numerous secessionist movements which exist around the world.

However specific it may be, Kosovo is also a classic case of secession.  The secessionist movement was supposed to be addressed by a combination of international norms and rules, the principles of a democratic state and good governance, and specific solutions aimed at reconciling the interests of the parties to the conflict - Serbia and her Albanian minority.

What distinguishes the case of Kosovo and Metohija from the other well-known requests for secession around the world is that the United Nations itself is deeply involved in the resolution of this questions.  In the wake of the NATO intervention against Yugoslavia, carried out without a UN mandate and with practically no basis in international law, the decision to place Kosovo under UN administration was actually an attempt to put the conflict back on the tracks of international law.  UN Security Council Resolution 1244 (10 June 1999) re-established the forcibly interrupted continuity of the conflict with the basic documents of the United Nations (the Charter, international treaties signed under UN auspices and a number of UN resolutions on Kosovo and Metohija) as well as of the OSCE including the 1975 Helsinki Final Act.  The Resolution focussed on a few essential points:

-    it inaugurated the UN civilian and military mission in Kosovo;

-    it confirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (later Serbia and Montenegro and, later still, Serbia, the successor state of Federal Republic of Yugoslavia);

-    it emphasised that the UN mission is supposed to contribute to the establishment of provisional institutions of self-government in Kosovo;

-    it specified that the purpose of the mission is to establish peace and stability in the region;

-    and it said that once the principal goal of the mission has been achieved, a process to define the future status of the province should be initiated.

Talks on a future status of the province were indeed opened in November 2005, six and a half years after the establishment of a robust civilian and military mission in Kosovo and Metohija.  The events in the province during that period did not help to remove the underlying reasons why the UN mission was set up in the first place.  At its deepest level, the conflict boils down to one between sovereignty and secession.  While at the beginning of the UN mission, the cause of the conflict appeared to be one between sociologically unjustified sovereignty and ethnically justified secession, six years later it looked like a fairly common controversy about the right of a state to its own sovereignty and the right of an ethnic minority to self-determination.

The right of a people to self-determination is the fundamental justification for the Albanians' long effort to establish their own state on the territory of Serbia's province of Kosovo and Metohija.  In its Declaration of 2 July 1990, the ethnic Albanian-dominated parliament of the then Autonomous Province of Kosovo and Metohija requested that Kosovo be recognised as "an independent and equal unit" within the "Yugoslav federation - confederation".  This request was based on the "sovereign right of the people of Kosovo, including the right of self-determination".  It was clear that the term "people" was not used to denote all the inhabitants of Kosovo and Metohija, but only the Albanians, in a bid to make this "people" equal in their constitutional rights with other constitutionally recognised peoples of the then Yugoslavia.

The same viewpoint was maintained in the "Constitution of the Republic of Kosovo," passed illegally by the province's rump assembly on September 7, 1990. The right "of the Albanian people to self-determination to the point of secession" was affirmed in the Preamble. Article 1 of that document defined Kosovo as "the state of the Albanian people and members of other nations and national minorities that are its citizens." Invoking the right to secession was a very conspicuous addition. Besides, there was a clear difference in terminology between the (Albanian) majority, described by the legal term "people", and the other "citizens of Kosovo", who were described as "members of other nations and national minorities." By the end of the decade, this initially important difference, which clearly indicated the exclusive ethnic origin of a state in the making, was to be replaced by the democratically seductive and ethnically neutral term "Kosovars," intentionally covering all inhabitants/citizens of Kosovo and Metohija.

A reference to the right to self-determination, with an either explicit or implicit right to secession, is commonplace in all separatist movements in the world. But international law is very specific in this context and rather restrictive in its explicitness. It moves between the general principle of an equal right to self-determination of peoples and the general principle of preserving the sovereignty and territorial integrity of states. The relationship between the two principles is important insofar as the exercise of one right (to self-determination) must not contradict the other (sovereignty and territorial integrity of a state) in any given case.

Thus, in terms of legal norms, the generally accepted provision reads: "All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." But this provision does not automatically generate the right to create a state as a means of achieving self-determination, for such self-determination must also respect the principle of sovereignty and territorial integrity of the State to which the people belongs.

Unlike the legal normative approach - where the secession of a territory arising from the right to self-determination is not even mentioned, as legal norms do not provide for such a possibility at all - in a theoretical approach the debate will focus on the validity and universal acceptability of the right of secession. It goes without saying that this is not about substantive law, but rather about law as a political ideal, which is to be viewed from the point of view of its internal rationality. In this context, a modern theoretical answer views positively the right to secession only if it is related to a request for the simultaneous establishment of democracy and human rights as political values that are more constitutive of today's world than the state.

The problem with this approach is that, in an empirical sense, requests for secession since World War I have come from different ethnic or culturally defined groups, or national minorities, for which democratic and human rights are not exclusive normative values, but rather the instruments for achieving their principal goal.

The general direction of both international normative practice and referential theory appears to have shifted over the past few decades towards deepening the standards of legal and institutional protection for minority rights, and away from theoretical justifications of the right to secession or its standardisation in international law. It is in this sense that the term "the right to internal self-determination" has been in theoretically legitimate use. It covers different theoretical and practical experiments and experiences related to minority protection within a state, together with the elements of both national and international court protection. Since the two international treaties on human rights were adopted in 1966, giving the rights of national minorities their rightful place, minority protection, particularly in Europe, has earned a central place in the normative development of a wide array of human rights. In this respect, states are hardly as sovereign as they were in 1966 in providing a constitutional and legislative framework for human rights, their protection in particular. However, there have been no signs that the right to secession might become part of the routine international protection of basic human rights, especially minority rights. The right to self-determination of peoples is just a possibility in principle for a given people to form a state of its own under the strict condition that it does not imply secession of the territory of an existing state, tantamount to a forcible separation beyond law. Modern theories and, progressively, international-law practice, broaden the room and increase the possibilities for the right of self-determination to be enjoyed by national minorities, but only within existing states.

Given the existing international normative regulations covering the right to self-determination, it is no wonder that the case for the secession of Kosovo and Metohija from Serbia is based on the claim that it is a unique case.  The Kosovo Albanians and their political supporters abroad argue that their case is so unique that existing international law and principles, on which the current international system is based, cannot be applied.

The matter is not so simple, however, neither in its legal or factual aspects.  Not even the opinions of the Badinter Arbitration Committee, which provided the legal grounds for the secession of the four constituent republics of the federal Yugoslav state, can be adduced in the case of Kosovo and Metohija since there was no mention of the province there.  But even this silence should not justify disregarding the opinions given by that Committee - Badinter's substantial explanation of the de facto situation in Yugoslavia in the autumn of 1991, which was the basis for its general conclusion (in paragraph 3, Opinion 1), which was as follows:

The Arbitration Committee is of the opinion:

- that the Socialist Federal Republic of Yugoslavia is in the process of dissolution;

- that it is incumbent upon the Republics to settle such problems of state succession as may arise from this process in keeping with the principles and rules of international law, with particular regard for human rights and the rights of peoples and minorities;

- that it is up to those Republics that so wish, to work together to form a new association endowed with the democratic institutions of their choice.

In a nutshell, the Committee found that there was no question of secession, because "the state was in the process of dissolution", and that the republics were successors to the common state, which, in solving the succession issues, had to take into account human rights, the rights of nations and national minorities. The Badinter Committee interpreted the right of a people to self-determination as the right of successor republics to self-determination, and in this sense took no notice of the Declaration the Kosovo Parliament passed on July 2, 1990 and the "Constitution of the Republic of Kosovo", adopted on September 7 of that same year. Eo ipso, the Committee did not accept Kosovo and Metohija as eligible for the right to self-determination.

In arguing that Kosovo and Metohija is a unique case, however, it has been claimed that secession is justifiable and desirable because of subsequent events. There are several reasons, notably beyond law, that are commonly offered to support secession, i.e., the establishment of an independent state of Kosovo. Based on the events that took place in the second half of the 1990s, these reasons are as follows:

1.    Throughout the 1990s, the Serbian regime perpetrated massive human rights violations against Albanians in Kosovo and Metohija. Albanian propaganda, spread effectively across the world, described this first as apartheid (during the 1990s, until the beginning of a NATO aggression) and then as genocide (during the aggression).

2.    The NATO armed intervention was an unprecedented event, carried out with no foundation in law, i.e. without a UN approval, and with no invocation of Chapter VII of the UN Charter. The operation was labelled "humanitarian intervention." A general atmosphere of propaganda was created, leading to international public support for the effective right of Kosovo Albanians to self-determination and, ultimately, secession, and the establishment of their independent state in the territory of Kosovo and Metohija.  Two reasons were given for this: first, Serbia's permanent ethnic repression proved it politically and functionally unable to exercise a minimum of democratic governance in its province; secondly, the Albanians gained a high moral reputation as a population struggling for its elementary human (not minority) rights by non-violent means.

3.    After the NATO intervention, the UN civilian and military mission was established in the province, and provisional institutions of self-government were formed later. Serbia was deprived of any political or administrative influence in the province.

These three reasons appear sufficient for the local majority to "decide freely on its political status," either directly or through its legitimate political representatives, once the Kosovo-Metohija future-status process has been launched as one of the above mentioned elements of the Resolution 1244.

Such a political interpretation of the case as absolutely unique contains serious formal and material flaws. Formally speaking, it needs to be said that the UN Security Council Resolution 1244 has been the UN's benchmark legal document which three times confirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (today's Serbia in terms of state continuity). Those reasons given as reasons for secession were in fact defined by Resolution 1244 as the reasons for establishing a UN civilian and military presence in Kosovo and Metohija, as part of Serbia, in an international-law sense. However convincing they may seem at first glance, particularly in the context of an extraordinary campaign to shape public opinion and to garner the support of powerful states, these reasons are far too contingent to justify a violation of the ground rules of the international system. As the past ten years of UN administration showed, these reasons have undergone drastic material changes:

1.    Since June 1999, when the UN administration was installed, the main current of massive human right abuses was reversed in the direction of systematic terror and persecution against Serbs and other minorities, which the Albanian majority has carried out for ten years already.

2.    NATO's "humanitarian intervention" has therefore been converted into support for a ruthless ultimatum by the majority population of the province to seize power with a single goal in mind - secession.  And while a dysfunctional and authoritarian provisional government was set up in Kosovo and Metohija, a democratic government was inaugurated in Serbia.

3.    In particular, the UN civilian mission slowly but surely began to act outside the UN mandate, supporting the creation of elements of internal statehood in the province.  Instead of being a factor for stability, the mission accumulated problems.  At the very time when UNMIK proved incapable of assisting Serbs to return (in spite of an explicit obligation to do this in UNSC Resolution 1244) or of protecting other minorities from persistent violent attacks by the ethnic majority, Serbia never abolished its institutions in the educational, health or welfare sectors.  Kosovo Serbs have used these continuously since a peacekeeping force was stationed in the province under a UN mandate.  As in the 1990s, a minority population survives thanks to the existence of so-called parallel institutions.

It is clear that the aforementioned arguments in favour of secession (including about the uniqueness of the case of Kosovo and Metohija) have not changed since the early 1990s when the reasons did not exist at all.  The Declarations and Constitutions going back to 1990 show that the political goals of the Albanian political leaders are the same as more than a decade later.  Then as now, secession was sought as the condition sine qua non for the Albanians' right to self-determination.

It is clear why the formal reason for sovereignty and territorial integrity, established by Resolution 1244, prevails over material arguments in favour of secession.  That is why the Kosovo case can never be proclaimed sui generis, even though it has some special features, but is instead a classical case of illegal secession.  The reason why it has been proclaimed sui generis lies instead in the extra-legal and geopolitical strategy of the Western actors, mainly the United States.  It is worth recalling here that the said Comprehensive Proposal, in Annexe X, proclaims NATO as the final organ of power in the so-called "independent Kosovo".  In the light of this, it is completely clear why the main Western actors have had to bypass the legal process in pursuit of their desired future status of Kosovo.

What is surprising is not the position of the USA, which has often violated international law, but the role of the EU.  Its assistance in the process of secession of Kosovo has been unprecedented. By assuming the role of executor of the Kosovo secession, the EU violated not only international law, but also its internal EU-law, as well as the constitutional law of its association partner - Serbia. Today the EU is the main executor of the illegal Ahtisaari Plan, introducing in its internal document (joint actions) the main provisions of the Plan on the so-called "supervised independence" of Kosovo. For the sake of this project; the EU is abusing massively the strategic orientation of Serbia toward European integration, and endangering that process heavily and successfully.  
 
 

Slobodan Samardžic is Vice President of the Democratic Party of Serbia and Professor of Political Science at the University of Belgrade.  This paper was delivered at the Institute of Democracy and Cooperation in Paris on 29 May 2009.

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