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The Kosovo Crisis: a Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft

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The Kosovo Crisis: a Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2009 The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft Antonio F. Perez The Catholic University of America, Columbus School of Law Robert J. Delahunty Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Comparative and Foreign Law Commons, International Law Commons, and the Military, War, and Peace Commons Recommended Citation Antonio F. Perez & Robert J. Delahunty, The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft, 42 VAND. J. TRANSNAT’L L. 15 (2009). This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES The Kosovo Crisis: A Dostoievskian Dialogue on International Law, Statecraft, and Soulcraft Robert J. Delahunty* Antonio F. Perez** ABSTRACT The secession of Kosovo from Serbia in February 2008 represents a stage in the unfolding of a revolution of "constitutional" dimensions in international law that began with NATO's 1999 intervention in Kosovo. NATO'S intervention called into question the authority and viability of the UN Charter system for maintaining internationalpeace. Likewise, the West's decision in 2008 to support Kosovo's secession from Serbia dealt another blow to the post-War legal rules and institutions for controlling and mitigating great power rivalry. Russia's later support for South Ossetia's secession from Georgia demonstrated the potential that the Kosovo precedent has for destabilizing the internationallegal order. This Article takes the form of a five-act play, consisting of a series of speeches and exchanges between charactersdrawn from Fyodor Dostoievski's classic novel, The Brothers Karamazov. The dialogue moves on three levels. The first level is that of * Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, Minnesota. Former Deputy General Counsel, White House Office of Homeland Security; former Special Counsel, Office of Legal Counsel, U.S. Department of Justice. The Authors wish to thank Teresa Collett and John Yoo for their comments on earlier drafts and Simeon Morbey and John Allison for their valuable research assistance. ** Professor of Law, Columbus School of Law, Catholic University of America, Washington, D.C. Former Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State. 16 VANDERBIL TJOURNAL OF TRANSNA TIONAL LA W [VOL. 42:15 "normal" international law-the characters engage in a prolonged debate over the legality of Kosovo's secession that explores the usual modalities of international legal argument. The intention here is to demonstrate that when the internal conceptual resources of international law have been exhausted, they yield no decisive answer to the question of the legality of Kosovo's secession. The second level is an attempt to grasp the consequences for the international order of Russia's re- emergence as a Great Power and (even more basically) of the emergence of a "multi-polar" world. The third level is an examination of the basic, but usually unstated, philosophical and theological presuppositions of "the Western idea" and "the Russian idea." The speeches in this final act of the drama intend to show how these two rival understandings yield corresponding views of the international order and, more particularly,of the properscope and limits of internationallaw. TABLE OF CONTENTS INTRODU CTION ............................................................................... 17 Kosovo: BACKGROUND ................................................................ 26 THE Kosovo COLLOQUIES: A DRAMA IN FIVE ACTS ................... 36 Act I: Kosovo and the United Nations Security Council ............................................................ 37 Act II: InternationalLaw's Relation to the Charter:Questions of International Legal Method .................................................. 64 Act III: Kosovo's Secession and General InternationalLaw .......................................... 69 Act IV: The United Nations Charter as the "Constitution"of the World's Legal Order...... 108 Act V: New and Old Believers' Eschatologies............ 116 Part One: Speech of the Grand Inquisitor: European and Super-European ...................... 116 Part Two: Speech of Father Zossima: A Pilgrim age to Pristina ..................................... 131 2009] THE KOSOVO CRISIS: A DOSTOJEVSKIAN DIALOGUE INTRODUCTION In 2080, the 200th anniversary of the publication of Fyodor Dostoievski's celebrated novel The Brothers Karamazov,1 the Editors discovered a remarkable document while doing research in the archives of the Kremlin in Moscow. The document was written in the decade before the outbreak of the so-called Third World War (2021- 2023). Readers will, of course, recall that the Third World War, like the First (1914-1918), arose from the interaction between the nationalism of a small power and a great power's misunderstanding of that force. 2 Because of its interest, the Editors have decided to translate, edit, and publish the document. The authors of the document (identified only as "Andrei S***" and "Alexander S***") appear to have been officials in the Russian foreign ministry, probably instructors in public international law, who were training students to become members of the Russian diplomatic corps. The document may have grown out of conversations between the instructors and their students. It has the form of a drama or dialogue. As in Dostoievski's original novel, the document describes a series of exchanges among the four Karamazov brothers. Just as Dostoievski's novel portrayed the Karamazov brothers as representing different views that reflected the tensions facing late- imperial Russia as it was entering a new era, so perhaps the authors of the document believed that post-Soviet Russia, in the Putin- Medvedev years, was entering a similar era of change. The authors had observed firsthand the collapse of Soviet communism, the disintegration of the USSR, NATO's ensuing projection of power into Central and Eastern Europe and other areas of former Soviet dominance, and the economic and political traumas that Russia underwent in the 1990s. They witnessed Vladimir Putin's successful efforts thereafter to restore Russia's great-power status. 3 They 1. FYODOR DOSTOIEVSKI, THE BROTHERS KARAMAZOV (Richard Pevear & Larissa Volokhonsky, trans., 2000) (1880). 2. See ROBERT KAGAN, THE RETURN OF HISTORY AND THE END OF DREAMS 34- 36 (2008) (suggesting that careless management resulting in misunderstanding among the great powers as to Taiwan could yield the same kind of unintended consequences that gave rise to the First World War). 3. See, e.g., Jean Radvanyi, A Major Foreign Player Again, LE MONDE DIPLOMATIQUE, Dec. 2007, available at http://mondediplo.com/2007/12/10foreignpolicy (noting the positive effect of the political strategies adopted by Putin). Some commentators denied that Putin's policies were successful. See Michael McFaul & Kathryn Stoner-Weiss, The Myth of the Authoritarian Model; How Putin's Crackdown Holds Russia Back, FOREIGN AFF., Jan.-Feb. 2008, at 68, 68. For penetrating analyses of the nature of the Putin rdgime and its grand strategy, see MARSHALL I. GOLDMAN, 18 VANDERBIL TJOURNAL OF TRANSNA TIONAL LA W [VOL. 42:'15 watched as the Putin-Medvedev era's reinstatement of traditionally Russian, hierarchical forms of governance and its reinvigoration of Russia's sense of cultural and moral exceptionalism led to deepening conflicts with the West on political, strategic, and ideological grounds. 4 Like some Western analysts of the period, they were PETROSTATE: PUTIN, POWER, AND THE NEW RUSSIA (2008) and EDWARD LUCAS, THE NEW COLD WAR: PUTIN'S RUSSIA AND THE THREAT TO THE WEST (2008). One should not, however, be too swift to reach the conclusion that Russia is, or will soon become, an "autocracy," as some analysts have done. In Russia in Search of Itself, the leading Russian historian and scholar James H. Billington portrays a society engaged in ranging, many-sided, and vigorous debate with itself as it tries to define its post-Soviet identity. Billington argues that "[t]he variety and vitality of public debate about the nature and destiny of Russia . suggest[] that democratic government is already largely legitimized in Russia." JAMES H. BILLINGTON, RUSSIA IN SEARCH OF ITSELF 138-39 (2004). He acknowledges that despite the ongoing public conversation, there are "many possible doomsday scenarios for Russian democracy." Id. at 128. But he offers grounds for a guarded optimism: [I]f Russia were to succumb to negative nationalism and take a sharp autocratic turn, it would probably not last for long. Repression would be difficult to sustain in a vast country that has been so dramatically opened up to political freedoms and to the outside information age. Nor does Russia have a large enough population or the military resources to sustain the kind of aggressive foreign policy that hypernationalistic states generally need to maintain their legitimacy. Id. at 88. Billington's depiction is supported by the findings of the well-known Polity IV Project, which studies the political r6gime characteristics of various
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