Boshko Stankovski*
Implications of Kosovo Independence for the Doctrine of Constitutional Self-determination1
I. Introduction
A. Th e Relevance of the Question of Kosovo Independence for International Law
Th e case of Kosovo is highly controversial, not only because it touches upon two important institutions of international law—sovereignty and self-determina- tion—but because it goes beyond the classical understanding of these concepts. During the process of decolonization, agreement from the ruling metropolitan power was not necessary in order to declare independence. In all other cases of non-colonial secession before Kosovo, there was consent from the host country. Th is was sometimes achieved through intense involvement of the organized inter- national community, be it the UN, the EU, the African Union or other organs; here, Eritrea and South Sudan are clear examples. In the case of Bangladesh, force was used by India, no matter that it was beneath the cloak of self-defence or humanitarian intervention. However, the political negotiations that followed between India and Pakistan, led to secession being granted to the newly emerging Republic of Bangladesh by Pakistan as a host state. All this enabled the international community to deal with secessionist claims, without entering into debates about the entitlement to self-determination.2 After
* LL.B (Skopje), MPhil (Cambridge), PhD Candidate, University of Cambridge. 1 Th e bulk of this research was conducted during work on my MPhil thesis at the University of Cambridge, which was submitted in July 2009. I would like to express my deepest gratitude to my supervisor, Professor Marc Weller, Director of the Lau- terpacht Research Centre for International Law, University of Cambridge for his continuous support, encouragement and advice. Th e usual disclaimer applies. 2 Th e limited application of the doctrine was considered by scholars to disenfranchise the people that believed themselves to be entitled to the right of self-determination. See, for example, Marc Weller, “Th e Self-determination Trap”, 4(1) Ethnopolitics (2005), 3-28.
European Yearbook of Minority Issues Vol 10, 2011, ISBN 978-90-04-25634-7. pp. 91-136. Copyright 2013 Koninklijke Brill NV.
Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski all, it was not necessary. If a host country agreed to grant secession to a newly emerging entity, ultimately that was its sovereign right. Certainly, it did not mean that, in particular instances, the political pressure applied by diff erent interna- tional actors to bring about this solution was not disputable. In the case of Kosovo, however, the consent of the host country was lacking. In all other cases of unilaterally declared independence against the will of the host state, the organized international community has reacted consensually in declar- ing the entity unlawful (e.g. Northern Cyprus due to unlawful use of force) or simply ignoring its self-declared independence (e.g. Transnistria or Somaliland). With the new Serbian constitution, Kosovo has been declared to be:
[...] an integral part of the territory of Serbia […] and that from such status [...] follow constitutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations.3
Th is and statements by the Serbian leadership4 make it clear that the possibility of Serbia recognizing Kosovo is to be excluded, at least in the short term. However, what is diff erent in the case of Kosovo is that, at the time of writing, the new republic had been recognized by more than 90 countries worldwide. Considering the whole context of events that occurred over Kosovo—the involvement of the international community in the negotiations, the role of the UN Special Envoy and the confl icting opinions between the countries, including the UN Security (UNSC) permanent members—it is clear that the question of Kosovo’s independence will shape international law on issues of self-determina- tion and secession, as well as sovereignty and territorial integrity. As far as self-determination is concerned, a leading scholar has noted that it is “a most signifi cant exception to the traditional view that the creation of states is a matter of fact and not of law”.5 Th e case of Kosovo amplifi es this statement even more. Th e academic debate is particularly important since the International Court of Justice (ICJ) did not address this issue directly, as it was considered to be beyond the scope of the question posed by the General Assembly.6 In this regard it is very important to analyse the issue clearly and without prejudice. As will be seen below, Kosovo representatives themselves, as well as certain infl uential countries that have recognized the new state, claim that it is a
3 Preamble of the Constitution of the Republic of Serbia, at
92 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence sui generis case that cannot be used as a precedent. A mere statement is simply not enough. As this is the fi rst case of unilaterally declared independence opposed by a host country to achieve wider international recognition, there is no doubt that certain secessionist movements will try to use it as an argument in support of their own claims. Subsequent developments in Abkhazia and South Ossetia are clear examples. Additionally, there are secessionist claims in Chechnya, the Basque country and Catalonia, Quebec, Scotland, Nagorno-Karabakh, Transnistria and many others. Th erefore, how international law defi nes the case of Kosovo is very impor- tant. Th is is not merely an academic debate: referring to the fact that the majority of violent confl icts in the world today include secessionist demands, an expert in the fi eld stated that “self-determination kills”.7 Th e way the controversial issue of Kosovo is addressed and explained depends on whether the Pandora’s Box of competing secessionist claims is opened. Th e reason for this is that, since the Peace of Westphalia, the international system has been created in such a way as to protect states, notably their sover- eignty and mutual equality. Th e UN Charter is drafted on the same foundations. Self-determination, on the other hand, is an evolving doctrine. Th erefore, before engaging in a debate over Kosovo, these competing notions of sovereignty and self-determination should be briefl y elaborated.
B. Kosovo’s Unilateral Declaration of Independence and the International Response
Th e Kosovo parliamentary assembly declared independence on 17 February 2008. Th e immediate international reaction, apart from that of Serbia, came from those countries that were fi rst to recognize the new state. All of them underlined the ‘uniqueness’ of the case of Kosovo.8 Th is was in line with the recommendation of UN Envoy Martti Ahtisaari.9 In that instance, the statement of US Foreign Secretary Condoleezza Rica is particularly interesting:
Th e unusual combination of factors found in the Kosovo situation—includ- ing 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
7 Marc Weller, Escaping the Self-determination Trap (Martinus-Nijhoff , Leiden/ Boston, 2008), 13. 8 See for example, Statement of the UK Permanent Representative to the UN, UN Doc. S/PV.5839, at
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not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as precedent for any other situation in the world today.10
Considering this view, the claim for the sui generis case of Kosovo’s independence was founded on the fact that it contained a combination of elements from all three types of post-colonial self-determination doctrines: (i) remedial self-determination (“the history of ethnic cleansing”); (ii) constitutional self-determination (“the context of Yugoslavia’s breakup”); (iii) an eff ective entity (“the extended period of UN administration”).
Th e same approach is actually adopted in the Kosovo Declaration of Independence (the Declaration). For example, in its preamble it explicitly states that Kosovo is a “special case arising from Yugoslavia’s non-consensual breakup and is not a prec- edent for any other situation”.11 Analysing the text of the Declaration, it implies that the uniqueness of the case should be found in the complex combination of facts that entitled the province to invoke its self-determination status. Considering the link with remedial self-determination, the Declaration states that the object of the people of Kosovo is to create a “society that honors the human dignity”, specifi cally underlining the “painful legacy of the recent past” by “[r]ecalling the years of strife and violence in Kosovo that disturbed the con- science of all civilized people”.12 Th e Declaration states that the right to self-determination is granted as a remedy for the grave violations of human rights in the past only in its preamble. It can be concluded from the text of the Declaration that this doctrine is included to provide additional support to the Kosovo representatives’ goal of independence by stressing the uniqueness of the Kosovo case. However, in the operative clause of the Declaration, it is the doctrine of constitutional self-determination that has been invoked. In this regard it stresses that the independence of Kosovo “brings to an end the process of Yugoslavia’s violent dissolution”.13 Furthermore, the text asserts the continuity of Kosovo from part of the former Yugoslavia, through a UN-administered territory, to an independent state. In that direction the new state declares its readiness to take the “treaties and other obligations of the former Socialist Federal Republic of Yugoslavia to which [it is] bound as a former con- stituent part”.14 Finally, the Declaration draws attention to the fact that Kosovo was admin- istered by the UN from the end of the NATO intervention and no longer has any ties with the Serbian authorities. Similar to the doctrine of remedial secession,
10 Statement of the US State Secretary Condoleezza Rice, 18 February 2008, at
94 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence the justifi cation that Kosovo is as an eff ective entity established through a unique internationalized process15 was added as additional support to the claim for inde- pendence. After the failure of the Ahtisaari plan, independence was said to be an inevitable solution. It is noteworthy that the Declaration promotes Kosovo as a multiethnic state, not only of the Albanian community, but of all peoples living within its bor- ders. Accordingly, it unilaterally accepts not only relevant international acts (such as the UN Charter or the Helsinki Final Accord), but also the Ahtisaari Plan, Resolution 1244 and the Rambouillet Accords, which in a sense even created erga omnes obligations for the self-declared state.16
C. Structure of the Article
Th is article is divided into fi ve parts. Th e introduction raised the most important ways in which the case of Kosovo is challenging existing doctrines of international law when it comes to the right of self-determination and the question of secession. Th e second part focuses on the doctrine of constitutional self-determination. It examines whether Kosovo can be considered as the last phase of dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY). It determines whether Kosovo can be seen as a constitutive entity of the former SFRY and, if so, how the dissolution of the SFRY and the Badinter opinions aff ect its right to invoke the right of external self-determination. Th is section incorporates a com- parative analysis of state practice in relation to the right of self-determination and secession, and also sets out several constitutional solutions. Part III elaborates two other possible arguments used to justify Kosovo’s independence. Th e fi rst focuses on the right of so-called ‘remedial self-determina- tion’ in cases of gross human rights violations. Th e second examines the question of eff ective entities and the classical view that only eff ective control over a particu- lar territory can give rise to a right of secession. With this in mind, it examines the question of whether humanitarian intervention and UN administration can lead to the right to declare independence. Part IV argues that international law not only sets out the right to self- determination, but that international legal norms are emerging which regulate the process of obtaining independence. Although this view has only been out- lined by a few scholars, it has not been elaborated in detail. Th e section will begin by explaining the process of Kosovo’s fi nal status negotiations which led to the unilateral declaration of independence and the very fi rst recognitions by several important states. By comparing the Quebec Reference17 and recent developments with secessionist attempts in the Caucasus, it will examine whether such ‘due process’ norms exist and possibly determine what the requirements are.
15 Weller, op.cit. note 7, 70-71. 16 Kosovo Declaration of Independence, op.cit. note 11, paras. 5, 8. 17 Reference re Secession of Quebec, at
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Finally, the conclusion will summarize these arguments and seek to answer the question of whether Kosovo’s independence is indeed a sui generis case or whether it sets a precedent that might shake international relations and open the fl oodgates for other secessionist demands. If it is possible to argue precedent, at least to some extent, then it will outline the threshold that Kosovo has set for similar cases.
II. Kosovo and the Doctrine of Constitutional Self- determination
A. Th e Doctrine of Constitutional Self-determination from a Global Perspective
Th e entitlement to secede by exercising the right to self-determination was challenged during the dissolution of the former SFRY and the Union of Soviet Socialist Republics (USSR). Th e organized international community tried to jus- tify the secession of those republics that wanted to leave these federations, while upholding the general principles of the self-determination doctrine. Th is was even more diffi cult in the case of the SFRY, as Belgrade claimed that it still represented the entire state and opposed the secession of the other republics. A right approach to this question was necessary in order to protect the international system from the emergence of new secession movements and self-determination confl icts. When the fi rst attempts to secede from the SFRY began, the European Commission (EC) created an Arbitration Commission chaired by the French Constitutional Court Judge, Robert Badinter (the Commission). Th e Commission avoided addressing the issues of self-determination and secession directly. Instead, it declared that the whole country was in the process of dissolution. Its underly- ing reasoning was that every constituent republic has the right to invoke its self- determination status. However, the work of the Commission shaped the doctrine of constitutional self-determination outside the classical colonial context, and was especially important since it dealt with the exercise of the right against opposition from the centre. Th e doctrine of constitutional self-determination was also applied in the proc- ess of secession of the former USSR republics and, in the case of Czechoslovakia’s dismemberment. It is doubtful whether the USSR was actually in a process of dissolution, as although on one hand the Alma-Ata Declaration stated that with the creation of the Commonwealth of Independent States (CIS) the USSR “ceases to exist”,18 just few days later, in a letter to the UN Secretary-General the Russian president announced that the Russian Federation would take the former USSR’s seat in the Security Council and all other UN bodies, and would assume full responsibility for its rights and obligations under the UN Charter, including the
18 Th e Alma-Ata Declaration, 21 December 1991, at
96 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence fi nancial ones.19 In the case of Czechoslovakia the separation came by mutual agreement between the two constitutive entities. Th e dismemberment of the SFRY and Czechoslovakia is an example of con- stitutional self-determination applied to a case of eff ective dissolution of a country. Additionally, international law also distinguishes between express and implied constitutional self-determination status.20 Express constitutional self-determina- tion can be found in the 1947 Constitution of the Union of Burma. Article 39(5) of the 1994 Ethiopian Constitution and Article 4(2) of the 2003 amendments to the Constitution of Lichtenstein also incorporate the express right to secede. By contrast, implied constitutional self-determination status is considered to apply to Quebec, and Scotland after the latest devolution act. All these examples will be elaborated below in relation to Kosovo’s declared independence. Within the doctrine of constitutional self-determination it is very impor- tant to consider the way in which the constitutional structure of the host state emerged. One situation is where the host state became a type of composite state with loose relations to the seceding entity as a result of being constituted that way. In such cases sovereignty is expressly vested in the constituted units, whether they are federal republics or regions with special status. A totally diff erent situation is one in which a country became a composite state with loose relations to the seceding entity as a result of a process of devolu- tion. Self-determination claims in the former cases are much stronger than in the latter,21 and state practice is not very keen on self-determination claims coming from regions that obtained autonomy or even the status of federal units through a process of dissolution, i.e. transfer from the central federal organs. Th is fear is understandable. No state wants to fi nd itself in a situation where granting more rights to certain regions might lead to secession.22 If this were the case, then respect for the ‘internal’ right of self-determination would be funda- mentally undermined, and more democratic states would ultimately be punished. In the EU, this process might also be regarded with suspicion, given its general tendency to focus on decentralization, regionalization and enabling crossborder regions to cooperate without interference from central authorities. Th is could be the reason why certain EU member states, such as Spain, Romania or Slovakia— struggling with secessionist demands themselves—are still reluctant to recog- nize Kosovo’s independence, despite their support for the NATO intervention in Kosovo.
19 UN Doc. 1991/RUSSIA of 24 December 1991, Appendix, quoted in Yehuda Z. Blum, “Russia Takes Over the Soviet Union’s Seat at the United Nations”, 3(2) EJIL (1992), 354-361, at 356. 20 Weller, op.cit. note 2, 16. 21 Weller, op.cit. note 7, 93. 22 Rosalyn Higgins, “Self-determination and Secession”, in Julie Dahlitz (ed.), Secession and International Law: Confl ict Avoidance – Regional Appraisals (TCM Press, Th e Hague, 2003), 21-38, at 36.
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Unlike the republics of the SFRY Kosovo did not have express self-deter- mination status, as it was an autonomous province within Serbia. However, its de facto position in the Federation was not so diff erent from that of the other republics. As will be seen below, the context of the SFRY creation, the established federal arrangements and ultimately its break up on the one hand, and the position of Kosovo during those processes on the other, legitimately raise the question of whether Kosovo should be considered to have an entitlement to self-determina- tion that was preserved when SFRY dissolved and was later invoked under unique circumstances. Th e next part of this section will examine these issues.
B. Key Questions Concerning Kosovo’s Entitlement to Constitutional Self-determination 23
Th e doctrine of constitutional self-determination is usually overlooked by schol- ars who try to explain Kosovo’s right to secede. Th is is for two reasons. First, many analyse the position of Kosovo without referring to the historical context of the creation of the SFRY, which neglects important facts. Th e second reason can be found in the misinterpretation of the Badinter opinions. Since the Badinter Commission did not directly address the issue of Kosovo, and focused only on the position of the seceding republics, there is a common misconception that its opin- ions actually preclude Kosovo’s entitlement to constitutional self-determination. When it comes to relations between Kosovo and the SFRY, notably when this is set again the context of the latter’s dissolution, it should be emphasized that Kosovo was not merely an autonomous province that was granted a higher status of self-governance, but was rather a constituent entity of the former Yugoslavia. Th is status was not only attributed to it in the 1974 SFRY constitution. Kosovo has been considered part of the so-called ‘new’ Yugoslavia, ever since it was created after World War II, when the Communist Party took power from the exiled gov- ernment of the pre-war Kingdom of Yugoslavia. Th is point has not been properly explained nor has it been related to the question of whether Kosovo is entitled to self-determination.
C. Kosovo’s Self-determination Status Seen from the Angle of the Creation of the SFRY
According to mainstream doctrine in the SFRY, the federal republics made a decision to unite and create the state of the SFRY. Th e constitutive act that con- fi rmed the free association was the holding of the so-called ‘anti-fascist council(s) of the peoples’ liberation’. Every constituent republic had such a council when they decided to become part of the SFRY. Th is is why all SFRY constitutions have
23 Th is part focuses on relevant legal documents and scholarly writings of Yugoslav authors, mainly from the period of the SFRY. Th e aim of this approach was to show that this opinion was held by SFRY constitutional law scholars, even during that period.
98 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence always incorporated a secession clause, which gives constituent republics the right to leave the federation. Th e ambiguity starts with Kosovo. Due to resistance by the local popula- tion, Kosovo’s decision to join the federation was submitted a year later, in July 1945. However, Kosovo held a similar Regional Peoples’ Assembly of Kosovo and Metohija and made a decision to join Yugoslavia as an autonomous province within Serbia.24 What is particularly interesting is that the adoption of this decision did not pass without controversy. Diff erent views were apparent in the two versions of the same document. In the Serbian version that was submitted to the federal authori- ties and subsequently approved, the term used was the ‘joining’ of Kosovo to fed- eral Serbia. By contrast, in the main title of the Albanian version of the document the word ‘annexation’ of Kosovo was used. In the text itself, the phrase ‘bashkohet’ was used, which in Albanian means ‘creating a union’.25 Th ese diff erent terms can have diff erent legal interpretations. If we take the defi nitions set out in Principle VI of UN Resolution 1541,26 the Serbian text implies the option of ‘integration’, while the Albanian version can be interpreted as meaning ‘free association’. Th is diff erence of viewpoints should not to be seen as incidental. While the document was written in Serbian, and was thus the ver- sion sent and approved by the federal authorities, the Commission that drafted it was composed of a majority of ethnic Albanians from Kosovo. Although the pretext for this subtle ‘struggle’ is not hard to guess, it still cannot be answered with certainty. Whatever approach one takes, it does not diminish the argument that Kosovo was considered to be a constitutive entity of Yugoslavia. In this respect, for exam- ple, even before the fi rst Yugoslav Constitution of 1946, with the Law on [the Creation of] Constitutive Assembly of 1945, the autonomous provinces obtained the right to delegate their representatives in the Constitutive Assembly directly and not through Serbia.27 Th is meant that the representatives from Kosovo par- ticipated equally in the adoption of the main constitutive act of the new federa- tion. Th erefore, Kosovo and Vojvodina were not only part of federal Serbia, but
24 Resolution of the Regional Peoples’ Assembly of Kosovo and Metohija, 9 July 1945, reproduced in Slobodan Nešković and Branko Petranović, AVNOJ i revolucija: tem- atska zbirka documenata 1941-1943 [AVNOJ and Revolution: Documents 1941-1943] (Narodna knjiga, Belgrade, 1983), 736-738. 25 Stanoje Aksić, Th e Position of the Autonomous Provinces in the Constitutional System of the SFRY (Faculty of Law, Belgrade, 1965), 64. 26 Principle VI of UN General Assembly Resolution 1541, 15 December 1960, out- lines how the right of self-determination can be exercised. Accordingly, a non-self- governing territory can reach the status of full-government by: (i) emergence as a sovereign and independent state; (ii) free association with an independent state; and (iii) integration with an independent state. 27 Svetomir Škarić, Constitutional Law: Vol. II (Fitco, Skopje, 1992), 202.
99 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski were also a constituent element of Yugoslavia.28 Th e right of direct representation in the Federal Assembly was further confi rmed by the first Yugoslav constitution of 1946. Th is approach is not surprising. Th e view of the leaders of the Communist Party of Yugoslavia, both before and after World War II, was that autonomy could be given only to those national minorities that were compactly populated in cer- tain areas as an integral part of the territory of some federal entity (in this instance Serbia). Th e other minorities that were not so historically attached to territory and were spread out across various areas could expect only minority rights and some forms of cultural autonomy.29 It is beyond doubt that this approach was later trans- posed to the drafting of the constituting legal acts of Yugoslavia. Th e 1946 Yugoslav constitution and the constitutional law of 1953 gave Kosovo broad autonomy, which was subsequently expanded. Th e only time when Kosovo’s autonomy was decreased was between 1963 and 1968, which followed a period of great centralization within the Yugoslav federation. Th e other constitu- ent republics feared centralization of the federation, since it implied much greater power for Serbia as the largest of the republics. Th is tendency coincided with turbulent political life in Yugoslavia and was altered by the constitutional amend- ments of 1968 and the new SFRY constitution of 1974. Th ese constitutional changes accorded Kosovo the status of constituent ele- ment within the Yugoslav federation. Th e autonomous provinces had the right to their own central banks and an assembly as the highest organ of the province. Th e former title of ‘Status of Autonomous Province’ became ‘Constitution’. Moreover, the borders of Kosovo and Vojvodina could only be changed with the consent of the province concerned, and they participated directly in the federal organs. Moreover, the provinces were considered the primary place for exercising the sov- ereign rights of the peoples within them.30 Th erefore, even during the time of Yugoslavia, many constitutional scholars considered them to be a federal entity of both the “Serbian and Yugoslav Federation”.31 Most considered that the autono- mous provinces became de facto fully-fl edged federal entities.32 As will be described in detail below, some of these constitutional entitle- ments were used by the Badinter Commission to argue for the right of the repub-
28 Ibid. 29 Janko Pleterski, Nacije, Jugoslavija, revolucija [Nations, Yugoslavia, Revolution] (Kominist, Belgrade, 1985), 464-465. 30 Škarić, op.cit. note 27, 205. 31 Borivoje Pupić, Normativna funkcija avtonomnih pokraina [Th e Normative Function of the Autonomous Provinces] (Institut za uporedno pravo, Belgrade, 1973), 82. 32 Veljko Mratović, Nikola Filipović and Smiljko Sokol, Ustavno pravo i politicke institucije – SFRY i komparativno [Constitutional Law and the Political Institutions – SFRY and Comparatively] (Faculty of Law, Zagreb, 1981), 310; Jovan Đordević, Fed- eralizam i nacionalno pitanje [Federalism and the National Question] (Savez udruzenja za politicke nauke Jugoslavije, Belgrade, 1971), 89, 253-254; Jovan Đordević, Ustavno pravo [Constitional Law] (Savremena administracija, Belgrade, 1982).
100 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence lics to secede. However, it avoided using the quoted constitutional articles when determining the self-determination status of the autonomous provinces, although the same rights applied equally to them. Th is has led some scholars to conclude that the Commission took a negative view of Kosovo’s entitlement to statehood.
D. Kosovo Seen from the Process of Dissolution of the SFRY and the Badinter Opinions
Certain scholars consider that the opinions of the Badinter Commission can be used to preclude the legitimacy of Kosovo’s independence.33 Serbia points to the fact that the Commission did not consider Kosovo at all.34 However, this paper takes the position that these are misconceptions: not only that the Badinter opin- ions did not address the issue of Kosovo directly, but that through careful analysis it can be argued that certain elements weigh in favour of Kosovo’s entitlement to statehood. Right from the outset, the Commission started from the position that inter- national law as it currently stands does not spell out all the implications of the right to self-determination. It therefore confi rmed the notion that the creation of states and, by adverse reasoning—- their dissolution, is a matter of facts35 and does not depend on declarations, whether these come from the country concerned or from a third state. Moreover, the Commission did not initially use the phrase ‘self-determination’, as it focused on the operative issues that would confi rm the dissolution: the breakdown of the federal arrangements for power-sharing, includ- ing the arrangements that involved representation of the constituent entities.36 In this instance, the arguments that the Commission used to prove that the SFRY was in the process of dissolution apply equally to Kosovo. Yet, the ques- tion of Kosovo was not referred to in the opinions at all. More specifi cally, asked whether the declared independence of Bosnia, Croatia, Macedonia and Slovenia could be considered acts of secession or dissolution of the entire country, in its fi rst opinion the Commission stated that:
[…] in the case of federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the
33 Matthew Craven, “Th e European Community Arbitration Commission on Yugosla- via”, 66 BYIL (1996), 333-413, at 389. However, on the same page the author argues that the Commission did not identify the units of government in which the presump- tive states were to be. 34 See, for example, Written Statement of Serbia to the ICJ, paras. 262-263, at
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state implies that the federal organs represent the components of the Federation and wield eff ective power.37
It concluded that the SFRY was in the process of dissolution and that the constit- uent entities were now invoking their self-determination status in order to obtain statehood. But the arbiters were aware that international law, as it stands, does not predict what consequences might arise when the right of self-determination is removed from the colonial context. An additional challenge was how to keep the heterogeneous notion of ‘a people’.38 Th is link in the colonial cases was protected by the uti possidetis principle.39 Th e Commission therefore tied entitlement to statehood with respect for the principle of uti possidetis juris.40 Th e arbiters considered this to be a general princi- ple of international law. By referring to the jurisprudence of the ICJ, it concluded that the scope of application of uti possidetis juris is “logically connected with the phenomenon of obtaining of statehood, wherever it occurs”.41 Th is was a step forward that took the principle out of the colonial context.42 However, if it was attached it to an entitlement to statehood, then the emerging state had to rely on some kind of respected administrative territorial boundary where the right could be exercised. In other words, the right to self-determination outside the colonial context could only occur if there was a prior constitutional or administrative entity that had an express right to secede or its position in the host state implicitly, but unambiguously, led to that conclusion. According to the Commission, this was conditio sine qua non for obtaining statehood. Th e denied
37 Badinter Opinion I, para. 1(d). Emphasis added. 38 Pellet, op.cit. note 38, 179. 39 During the process of decolonialization, the exercise of the right to self-determi- nation was tied up with respect for the principle of uti possidetis—‘as you possess’. Th is principle means that the former colonies may be granted independence only within the existing boundaries drawn in the colonial era. Th e ethnic and religious fragmentation of the new states was irrelevant, as well as the links that existed prior to colonialism (Western Sahara Case, 1975 ICJ Reports, paras. 90-93). Th e aim was to protect the international system from endless secessionist claims, as well as to protect the newly emerging states from devastating fraternal struggles (Burkina Faso v. Mali Frontier Dispute, 1986 ICJ Reports, paras. 20-21). With the rulings in the aforemen- tioned cases, respect for the principle of uti possidetis became a condition sine qua non of the exercise of the right to self-determination. It is considered to have general scope of application and, according to some scholars, a character of customary law that, with recent practice, was necessarily tied to the process of obtaining statehood. See, for example, Malcolm N. Shaw, “Peoples, Territorialism and Boundaries”, 8(3) EJIL (1997), 478-507. State practice to date has been consistent in confi rming the principle of uti possidetis. 40 Badinter Opinion II, para. 1. 41 Badinter Opinion II, para. 2, quoting Burkina Faso v. Mali Frontier Dispute, 1986 ICJ Reports, 565. 42 Craven, op.cit. note 33, 386.
102 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence self-determination of the self-declared Republic of Srpska Krajina, where the Serbian minority in Croatia declared independence, is a clear example confi rming this view. In order to determine the scope of application of the principle of uti possidetis, the Commission stated that:
the principle applies all the more readily to the Republic since the second and the fourth paragraphs of Article 5 of the Constitution of the SFRY stipulated that the Republics’ territories and boundaries could not be altered without their consent.43
What is particularly interesting here is that the article, in addition to the repub- lics, also lists the autonomous provinces. Yet the Arbitration Commission does not mention Kosovo at all. However, this does not mean that the Commission expressed a negative opinion about Kosovo’s entitlement to statehood, or that application of the principle of uti possitedis precludes Kosovo’s entitlement to state- hood, as certain authors were misled into concluding.44 One has to bear in mind that the Commission was answering question for the purposes of the London Conference on Yugoslavia. At the time this Conference was dealing with the secession of the constituent republics and did not refer to the question of Kosovo. It is not hard to guess what the reasons for this were. Th e aim of the Conference was to prevent the violent confl ict that was raging in the former SFRY. In order to achieve this, the parties had to obtain the consent of Serbia on key issues. Th e chances that Milošević would agree to any compromise if Kosovo was on the table were minimal. As a result, the issue was not raised and the Commission pragmatically decided to limit itself to concentrating on the issues it had been asked to consider. In addition, according to the Montevideo Convention,45 one of the facts that determines the existence of a state is that it is represented by an organized political authority that controls the territory concerned. Th e seceding states were repre- sented by relevant authorities, even though those in Bosnia and Croatia did not have eff ective control over the entire territory. Nevertheless, they were the ones that by default continued from the previous system. Th e situation in Kosovo was much more complex. Kosovo’s authorities were parallel and had diminished com- petence due to the 1988 unilateral constitutional changes by Serbia. Th erefore the EC was quite confused as to what kind of position to take on them. Its ambiguous approach was best illustrated by its invitation to Kosovo representatives to observe the London Conference on Yugoslavia from a specially provided salle d’écoute, but
43 Badinter Opinion III, para. 2. Emphasis added. 44 See for example, Peter Hilpold, “Th e Kosovo Case and International Law: Looking for Applicable Th eories”, 8(1) Chinese JIL (2009), 47-61, at 49. 45 Montevideo Convention on the Rights and Duties of States of 26 December 1933, Article 1, at
103 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski without the possibility of active participation or addressing their issues.46 Th is position changed signifi cantly when Kosovo obtained eff ective control during the period of UN administration.47 Nevertheless, as can be seen from all the constitutional provisions quoted by the arbiters, the arguments implicitly referred to Kosovo as well. After all, if the entitlement to statehood, including the uti possidetis juris, applies “all the more readily” to the republics, it also applies to Kosovo—even if ‘less readily’. Finally, it should be mentioned that there might be some confusion in Opinion VIII of 4 July 1992, where the Commission stated that the process of dis- solution is “now complete and that the SFRY no longer exists”.48 Still, it cannot be inferred that the Commission meant that further secession, using the same princi- ples, was precluded.49 Instead, the Commission used this as a way of formally stat- ing that the legal personality of the SFRY was no longer valid and that the process of state succession could commence.50 As can be seen with the case of Serbia and Montenegro, Montenegro’s entitlement to self-determination from the SFRY was transferred to the state union between the two countries. It was later invoked when the country decided to declare independence. By that reasoning, Kosovo can be regarded as an entity integrated into Serbia without its consent. When its right of representation was denied, its citizen suff ered human rights violation and the international community intervened, placing it under UN administration; Kosovo just reinvoked its self-determination status.
E. External Self-determination of Constitutive Federal Entities: Kosovo Seen from a Broader Perspective
In view of the historical context and internal relations within the SFRY, the ques- tion that should be asked is whether Kosovo’s position in the federation gave it the right to constitutional self-determination as well. Th e view of this paper is affi rmative, for two reasons. Th e fi rst is that Kosovo was a constitutive entity of Yugoslavia. Th is implies that its position was not the result of a process of devolu- tion, but had been the case since the moment the new state of Yugoslavia was cre- ated. Th e second is that Kosovo should be regarded as a case of integration (of the province) into the SFRY. Th erefore, when the organized international community
46 Marc Weller, “Negotiating the Final Status on Kosovo”, Chaillot Paper No. 144, European Institute for Security, December 2008, at
104 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence offi cially noted that the SFRY was in a ‘process of dissolution’, Kosovo should also have been entitled to invoke its self-determination status. In this respect, Koskenniemi argues that a broader consideration of self- determination should apply in cases where state sovereignty is in question, whether it refers to a period of transformation or dissolution.51 Cassese states that the will of the people should be consulted each time “the fate of the people is at issue”.52 Both derive this notion from the Aaland Islands Arbitration in which the League of Nations Commission made a distinction between “situations de droit” and “situ- ations de fait”.53 Th e latter were seen as exceptional situations that provide the grounds for applying this principle. In those exceptional cases it can be considered that the rules protecting territorial sovereignty should be waived:
[I]f the essential basis of these rules, that is to say, territorial sovereignty, is lacking, either because the State is not yet fully formed or because it is undergo- ing transformation or dissolution, the situation is obscure and uncertain from a legal point of view and will not become clear until the period of development is completed and a defi nite new solution, which is normal in respect of the ter- ritorial sovereignty, has been established.54
Other than that, self-determination, according to the League of Nations Commission, was considered to be a political principle that could not be invoked to dismember a clearly established state. Th is notion should have been taken into consideration by the Badinter Commission that had the task of dealing with the ‘dismemberment’ process. Nevertheless, even if one takes the narrow interpreta- tion of its opinions, Kosovo should be seen as integrated into Serbia after the restrictively-considered ‘dismemberment’ process. Th ere are examples in state practice which indicate that external constitutional self-determination can be granted or, as in this case, reinvoked in certain circumstances. Th is view is sup- ported by various legal solutions in diff erent countries or by state practice in rela- tion to the support and recognition of particular secessionist demands. For example, the Autonomous Territorial Unit of Gagauzia in Moldova has been granted the right of external self-determination. Th e Law on the Special Status of Gagauzia entitles the province to exercise this right in case of a change of status of the Republic of Moldova as an independent state,55 i.e. if Moldova decides to join Romania.
51 Martti Koskenniemi, “National Self-determination Today: Problems of Legal Th eory and Practice”, 43(2) ICLQ (1994), 241-269, at 246. 52 Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge Uni- versity Press, Cambridge, 1995), 319-320. 53 Report on the International Committee of Jurists on the Aaland Islands Question, League of Nations Offi cial Journal, Spec. Supp. 3 (1920), 6-7. 54 Ibid, 6. 55 Th e Law on the Special Status of Gaguzia, 1994, Art. 1(4), at
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It is noteworthy that the express right of external self-determination for autonomous provinces in the case of dismemberment of federation was given by the 1990 Law on Secession from the USSR.56 However this law, which was sup- posed to regulate the procedure for leaving the union, established quite a com- plicated mechanism for doing so. Th erefore, Lithuania declared independence unilaterally,57 and the other states also declared independence without following the procedure. Even so, Western recognition was upheld until it was evident that the USSR had completely dissolved in the wake of the unsuccessful coup against President Gorbachev.58 As will be discussed in greater detail in section IV, it is noteworthy that Russia is invoking these provisions to argue for the right of Abkhazia and South Ossetia to declare independence, while denying them for Chechnya. According to the 1996 Truce Agreement, Chechnya was granted an interim period after which it could express its right to self-determination.59 If it is doubtful whether the USSR, unlike the SFRY, even went through a phase of ‘dissolution’, as Russia later became its at least political successor,60 there is no reason why the peoples of Kosovo should be denied their right to self-determination. In the case of Kosovo there is a constitutive federal entity of a federation that disintegrated. If the auton- omous province was the primary place to exercise the sovereignty of its peoples, if it participated equally in the creation and every aspect of political life in the SFRY, if was determined that the federal organs no longer represented the federation,61 then it should also be entitled to the right of self-determination. Th e struggle to reinvoke self-determination status once the territory has made an association with other states is also known in international law, for example in the cases of Eritrea with Ethiopia, Somaliland with Somalia, and South Sudan with Sudan.
56 Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR of 3 April 1990, Art. 3. Full text reproduced in Hurst Hannum (ed.), Documents on Autonomy and Minority Rights (Martinus Nijhoff , Dor- drecht, 1993), 753-760. 57 Th e Baltic States considered themselves to have been forcibly incorporated into the USSR or, in other words, occupied. Many Western states have also supported this view. 58 Weller, op.cit. note 2, 17. See also Weller, op.cit. note 7, 50. 59 Th e agreement conditioned Chechnya’s right to external self-determination, which was supposed to be exercised by popular vote by the end of 2001, on Chechnya’s cessation of support for terrorist activities. After several terrorist attacks occurred in Moscow, Russian authorities accused Chechnya of supporting terrorists, and declared the agreement void as a result of a breach. See Weller, op.cit. note 7, 134-135. 60 See Reference re Secession of Quebec, op.cit. note 17; Th e Almaty Declaration, op.cit. note 18. 61 Badinter Opinion I, especially para. 2(b).
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In the case of Eritrea, the UN made a political decision to integrate Eritrea with Ethiopia.62 Th is can be concluded from the text of UN General Assembly (UNGA) Resolution 390 (V) which established this. On the one hand the docu- ment respects the cultural diversity of a country that is clearly distinct from the rest of Ethiopia, while on the other it takes into consideration the “rights and claims of Ethiopia based on geographical, historical, ethnic or economic reasons, including in particular Ethiopia’s legitimate need for adequate access to the sea”.63 Th e wide range of autonomy that Eritrea enjoyed was unilaterally abolished by the Ethiopian authorities in 1962, which threw the country into a confl ict in which the Eritreans demanded secession.64 After three decades of atroci- ties, the situation was resolved in an agreement between the Government of Ethiopia and Eritrean representatives. Th is led to an interim period during which a UN-monitored referendum on independence was held. In addition, Ethiopia adopted a new constitution allowing all federal or autonomous units to express the right of self-determination, leading to secession.65 Eritrea’s independence is not a case of colonial self-determination, but rather of secession from an independent state that ultimately gave its consent. However, external self-determination was granted, although the UNGA Resolution 390 (V) of 1950 did not expressly mention the right of the Eritrean people to self-deter- mination.66 Th is case therefore supports the argument that self-determination is an inherent right which can be revived in certain precisely defi ned circumstances, such as denial of representation and human rights violations.67 Th e same can be argued in the case of South Sudan, where the province gained self-determination status during a peace process with signifi cant international involvement.68 Th e case of Somaliland also constitutes an attempt to reinvoke self-deter- mination status. Here, the reason was not so much denial of representation, as eff ective failure of a state. Somaliland has declared independence, but has not been recognized by any other state to date. However, it represents a pure form of an eff ective entity.
62 Th e case is signifi cantly diff erent from that of East Timor which was annexed by Indonesia through the use of force and has always been opposed by the vast majority of countries. 63 UN Doc. A/Res/390(V) from 1950. 64 Fatsah Ouguergouz and Djacoba Liva Tehindrazanarivelo, “Th e Question of Seces- sion in Africa”, in Marcelo G. Kohen (ed.), Secession: International Law Perspectives (Cambridge University Press, Cambridge, 2006), 257-296, at 267. 65 Constitution of Ethiopia, Art 39(4), at
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Th e organized international community has not explicitly condemned the declaration of Somaliland’s independence and made it an unlawful entity, as it did in the cases of North Cyprus or Srpska Krajina. Th is, along with the fact that it establishes de facto political relations with the self-declared state, thereby acknowledging its eff ectiveness,69 also implies that the international community does not resist or oppose the proclaimed independence. It is therefore no surprise that Somaliland authorities are relying on the case Kosovo as a possible precedent which they might also be able to apply.70 Seeing the political and legal dimensions of Somaliland’s struggle for independence, it is not too ambitious to argue that the country might expect international recognition in the future. However, the international community will probably not address this on the basis of the Kosovo secession. In recent practice, the organized international community has actually sup- ported the view that constitutional self-determination is the only applicable solu- tion in self-determination disputes outside the colonial context. Still, in almost all cases, to arrive at a situation where the ‘people’ could exercise the external dimension of this right a peace process was facilitated. Th e result of this process then led to an agreement that incorporated constitutional changes into the legal framework of the parent state, so that there emerged a pure and uncontroversial form of constitutional self-determination. Th is is especially visible in the case of Eritrea, for example. What is diff erent in the case of Kosovo is that there was no possibility of reaching this type of agreement. Th erefore, in a position where mutual consent could not be achieved, it was up to the international community to decide how it would address the issue. Analysing the general form of the Ahtisaari Recommendation,71 it can be concluded that it follows the line of the Aaland Islands Arbitration and the dis- tinction between the “situations de droit” and “situations de fait”, as Ahtisaari refers to the political situation in Kosovo and the security implications it might have in the Balkans.72 Th e approach led some authors to argue that he was looking for a solution outside international law, warning that a solution that is “designed to deal
69 See for example, UN Secretary-General Report S/2010/675 from 30 December 2010, especially at para 9. See also, infra note 104. 70 See for example, statement of Mr. Abdillahi Duale, Somaliland’s Minister of For- eign Aff airs: “Somaliland: Africa’s Best-kept Secret”, Th e Independent, 6 May 2009, at
108 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence with a unique case is not part of the law”.73 Th is view cannot be accepted, as the doctrine of constitutional self-determination, if rightly applied, off ers a solution without setting a precedent.
III. Other Possible Entitlement to Self-determination
A. Self-determination as a Remedial Right and Kosovo
Th e doctrine of remedial self-determination is an emanation of the concept of self-determination as a human right.74 It refers to the distinction between the ‘internal’ and ‘external’ dimensions of self-determination. According to this view, self-determination is a basic human right, with jus cogens character.75 Th is gives all separate entities living within a state the right to:
73 Jia Bing Bing, “Th e Independence of Kosovo: A Unique Case of Secession”, 8(1) Chi- nese JIL (2009), 27-46, at 34. 74 Th e principle of self-determination can be found in several important human right documents. Th e two 1966 covenants set self-determination in a colonial context, but defi ne it as a universal right common to all peoples. See Art. 1 of both the Interna- tional Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Similarly, Art. 20(1) of African Charter on Human and Peoples’ Rights defi nes self-determination as right to “all peoples”, while Art. 20(2) and (3) refer to colonial peoples. Th e Helsinki Final Act explains the right of self-determination as “freedom to defi ne the internal and external political status, without external interference”, so that peoples can “pursue as they wish their political, economic, social and cultural development”. Th ese provisions give grounds to argue that self-determination can be considered as a universal right with a scope of application that subsequently went beyond the colonial context. Or, as Higgins puts it, “in a post-colonized world, the evolution of self-determination as a human right is the bridge between the colonial and contemporary notions”. See Higgins, op.cit. note 22, 26. However, in the same article Higgins argues against the ‘mix and match’ politics of self-determination and minority rights. Minorities cannot claim to have the right of external self-determination. Th is view is supported by interna- tional lawyers and state practice. Additionally, the views of self-determination as a right to secession and as a human right common to ‘all peoples’ led most scholars to distinguish between its ‘internal’ and ‘external’ dimensions. In the context, the ‘external’ dimension applies only to colonial peoples. See Robert McCorquodale, “Self-determination: A Human Rights Approach”, 43(4) ICLQ (1994), 857-885, at 863. However, this division cannot be taken for granted as it actually presents two sides of the same principle that cannot be fi rmly separated. Th is view is argued by Weller. See, generally, in Weller, op.cit. note 7. 75 Antonio Cassese, International Law in a Divided World (Clarendon Press, Oxford, 1986), 136; and James Crawford, “Th e Rights of the Peoples: Some Conclusions”, in James Crawford (ed.), Th e Rights of Peoples (Clarendon Press, Oxford, 1988), 159-177, at 166.
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(i) preserve their cultural identity; (ii) be fairly represented in the state organs and; (iii) participate freely in the political, economic and social process.76
In this regard this concept does not give entitlement to the right to ‘external’ self- determination outside the boundaries of the colonial concept. Instead, it changes it with wider minority rights and the right to participation.77 Still, the right of secession is the ‘last’ solution in cases of denial of fundamental human rights. As the Commission of Rapporteurs in the Aaland Island Arbitration stated:
To concede minorities, either of language or religion, or to any fraction of the population the right of withdrawing from the community to which they belong, because it is their wish or good pleasure, would be to destroy order and stability within States and the inaugurate anarchy in international life […] Th e separa- tion of minority from the State of which it forms a part and its incorporation in another state can only be considered as an altogether exceptional solution, a last resort, when the State lacks either the will or the power to enact and apply just and eff ective guarantees.78
Th e threshold for this to happen is very high. Th is is a remedy of last resort and the oppressed entity has to prove “beyond reasonable doubt” not only that it is not represented by the government of the host state, but that it is the target of a policy of genocide or other form of jus cogens violation.79 In such cases, the central authority is considered to have relinquished its power to represent the very entity it is oppressing. As a result, the oppressed entity can invoke its right to ‘external’ self-determination and secede from the state oppressor. Th is right can be derived from the provisions of the Declaration of the Principles of International Law.80 Its so-called ‘safeguard clause’ can be reversed: the right to self-determination cannot be applied to disrupt the territorial unity of a sovereign country only if it is led by a “government representing the whole people belonging to the territory without distinction as to race, creed or colour”. From this it can be concluded that a government that does not represent the whole
76 McCorquodale, op.cit. note 74, at 859. 77 See, for example, Badinter Opinion II, at para. 3. 78 Aaland Island Arbitration, Report Presented to the Council of the League of Nations by the Commission of Rapporteurs, League of Nations Doc.B.7.21/68/106 (1921), at para. 28. 79 Asbjorn Eide, “Possible Ways and Means of Facilitating the Peaceful and Construc- tive Solution of Problems Involving Minorities”, 10 August 1993, UN Doc.E/CN.4/ Sub.2/1993/43, at para. 83. 80 UN General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Char- ter of the United Nations, 24 October 1970, at
110 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence population cannot enjoy the protection of its territorial integrity, at least not in the way provided by the narrowly interpreted right of self-determination. In such instances the wider application to the doctrine applies, invoking its ‘external’ dimension.81 While many scholars consider the right of remedial self-determination to be the last resort in cases of human right violations,82 there is no relevant state practice to support this view. 83 As will be described in more detail below, this approach can also not be used as the main argument in a discussion of Kosovo’s right to secede.84 Instead, it can only support its quest to be a separate state. Considering the issue of state practice, it was argued that up to 1990 the only successful secession outside of the colonial context was Bangladesh.85 Th e argument was that a regime that oppresses part of the population cannot claim to represent it any longer, and the right of external self-determination should be invoked.86 It was also argued that the people of Bangladesh could apply this right as there was a hypothetical (presumed) colonial situation.87 As a result, some scholars consider Bangladesh to be a case of remedial secession. In that regard, Crawford questions whether the secession of Bangladesh was really a case of remedial self-determination or whether it created a fait accompli that Pakistan ultimately accepted.88 While the former argument could be argued in theory, the facts speak in favour of the latter. Although, to some extent, certain aspects of the remedial right of self-deter- mination have been invoked by several countries, including the USSR, India and others that recognized the self-declared state prior to its secession being accepted
81 McCorquodale, op.cit. note 74, 879. 82 See generally in Christian Tomuschat, “Self-determination in a Post-colonial World”, in Christian Tomuschat (ed.), Modern Law on Self-determination (Martinus Nijhoff , Dordrecht, 1993), 1-20; Hurst Hannum, “Rethinking Self-determination”, 34 (1) Virginia Journal of International Law (1993), 1-69. 83 Rosalyn Higgins, “Postmodern Tribalism and the Right of Secession”, in Cather- ine Brölmann, René Lefeber and Marjoleine Zieck (eds.), Peoples and Minorities in International Law (Martinus Nijhoff , Dordrecht, 1993), 29-35, at 29; Helen Quane, “United Nations and the Evolving Right of Self-determination”, 47(3) ICLQ (1998), 537-572, at 564. 84 Kosovo’s right to secede as a form of remedial type of self-determination has been argued, for example, by Germany and the Netherlands, see Written Statement of Ger- many, at
111 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski by Pakistan,89 this was predominantly done in order to justify the military inter- vention by India and the position of the countries that supported it.90 Nevertheless, it should be underlined that the colonial context from which Pakistan emerged as a state, and the position of Bangladesh within that, was unique. Th is refers in par- ticular to the fact that the two entities were separated by a large portion of India’s territory.91 Th erefore, if some kind of remedial self-determination can be argued, it should be set against the context of the secession of a constitutive territorial state entity which was denied its rights and representation. Th is will be discussed in greater detail by the end of this section.92 Moreover, it should be noted that the secession of Bangladesh was ultimately accepted by Pakistan. When the latter received guarantees about the repatria- tion of some 90,000 prisoners of war,93 it recognized the independence of the new state of Bangladesh.94 Only after this was Bangladesh accepted into the UN.95 Th erefore, aside from the arguments used by both sides, the secession of Bangladesh can also be seen as a case where the consent of the host state was ultimately provided. Although certain parallels might be drawn, this is essentially diff erent from the case of Kosovo, which was an instance of unilateral secession opposed by the host state. With the new Serbian constitution it is highly unlikely that there will be Serbian recognition of Kosovo, at least in the foreseeable future. Other examples of state practice do not support the doctrine of remedial self- determination either. In the case of Katanga, an attempted secession in the 1960s ended with its forcible incorporation into the Democratic Republic of Congo. In 1992 the African Commission on Human and Peoples’ Rights (ACHPR) denied a request from the Katanga Peoples’ Congress to grant the right of remedial self- determination. Katanga argued human rights violations and denial of political
89 John Dugard, Recognition and the United Nations (Grotius Publications Limited, Cambridge, 1987), 75-76. 90 See generally in Th omas M. Frank and Nigel S. Rodley, “After Bangladesh: Th e Law of Humanitarian Intervention by Military Force”, 67 (2) AJIL (1973), 275-305. 91 Additionally, they existed as separate units in a geographical and economic con- text and (in some ways analogous to the case of Kosovo and Serbia) had population speaking diff erent languages and possessing distinct cultural identities. See Li-Ann Th io, “International Law and Secession in the Asia and Pacifi c Regions”, in Kohen, op. cit. note 64, 297-354, at 306-307. 92 See Weller, op.cit. note 103. 93 Prior to the Bangladesh request to secede there was a military intervention by India. 94 Sumantra Bose, “Kosovo to Kashmir: Th e Self-determination Dilemma”, Open Democracy (2008), at
112 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence representation96 Th e ACHPR found the submitted evidence insuffi cient, but did consider the issue. Th e international community also did not accord the right to remedial self-determination to the Kurdish population, despite the fact that it was denied representation and there was an international humanitarian intervention on its behalf.97 Th e main reason why a clear-cut right to remedial self-determination has not been supported n state practice is because it would give rise to many controversial issues. Th ere are two serious shortcomings to the doctrine of remedial self-deter- mination, both of which apply to Kosovo, and relate to the fact it: (i) is not easy to argue; and (ii) can undermine the principle of uti possidetis.
Although theoretically well explained, the doctrine of remedial self-determina- tion is not as easy to argue as at fi rst appears. Several aspects are problematic. Some are of a more subjective nature, for example, how to measure the magnitude of human suff ering that triggers the right to self-determination? A plausible solu- tion is that it would be determined by the UNSC but what if, due to the veto rights of permanent members, it could not make a decision? Th e case of Kosovo is a clear example of this. On the other hand, Russia bases its justifi cation for intervention in Georgia on the same argument. Another controversial issue is the question of how to explain why certain peoples can be granted independence, but not others. Th e people of Kosovo have suff ered violations of human rights, but the same can be said about the peoples of Katanga, Biafra, Tibet and many more. Additional diffi culties are the problem of how to determine the duration of the time limit from when the human rights violations occur to the granting of self-determination. As noted above, the events that led to the NATO humanitar- ian intervention in Kosovo occurred in 1999. Kosovo declared independence in 2008. In the meantime, Serbia has also undergone changes and the regime that was led by Slobodan Milošević has now been overturned.98 An even more serious problem is that this doctrine could directly undermine the principle of uti possidetis. As already argued, this represents a conditio sine qua non for the exercise of the right of self-determination, as confi rmed by every case so far, including the breakup of the former Yugoslavia. When it comes to the practical application of the doctrine of remedial self-determination, there is an
96 Aleksandar Pavkovic, “Introduction”, in Aleksandar Pavković and Peter Radan (eds.), On the Way to Statehood: Secession and Globalization (Ashgate Publishing, Hampshire, 2008), 1-16, at 7-8. 97 Marc Weller, Contested Statehood: Kosovo’s Struggle for Independence (Oxford Univer- sity Press, Oxford, 2009), 273. 98 Morag Goodwin, “From Province to Protectorate to State? Speculation on the Impact of Kosovo’s Genesis upon the Doctrines of International Law”, 8(1) German Law Journal (2007), at
113 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski inherent inability to make a clear link between the oppressed ‘entity’ and the ‘territory’ where the right will be exercised. Th erefore, one of the key issues is to determine whether the secessionists constitute a ‘people’. 99 Because there is always a particular group that is the victim of the oppression, a line has to be drawn where that entity lives. Drawing such lines implies the creation of new boundaries based on ethnic principles, which on most occasions will contradict the principle of uti possidetis. In this respect some scholars claim that in the case of Kosovo the administra- tive borders have no real relevance to the calculation. Moreover, they argue that there is no legal or ethical basis that would prevent a minority from the seceding entity (in this case the Serbian minority in Kosovo) to declare independence.100 Th is is usually supported by the statement that, as the Kosovo Albanians were the victims, the right of (external) self-determination can only be applied as a remedy in the area that is predominantly populated by them. Th erefore, according to this view, remedial self-determination cannot be applied to the separated Serbian enti- ties that, due to their position near the new established border with Serbia, should have the right to remain within its borders. Th is view is unacceptable, as the con- sequences would undermine the very foundations of international law in the area of self-determination. Th e confl ict between the remedial right of self-determination and the prin- ciple of uti possidetis is eminent. Th ere has been a tendency in scholarly practice to distinguish between two diff erent approaches to self-determination: the so- called ‘people’101 or ethnic approach, and the ‘territorial’ approach.102 Th e ‘people’ approach seems to be dominant, and has already been described above. Th e argu- ment made by certain authors that the territorial approach can be used as a model for post-colonial secession should be rejected. Although it seems at fi rst glance to bridge the tension with the principle of uti possidetis, it actually opens up a whole new range of issues about entitlement to territory and the principle of eff ectivité, and initiates complex and often biased historical debates. In any possible outcome,
99 See Th e Report on Events in East Pakistan, op.cit. note 86; see also “Th awing a Frozen Confl ict: Th e Separatist Crisis in Moldova”, 62(2) Record of the Association of the Bar of the City of New York (2006), at
114 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence the result of that does not enhance the stability of the international system, but rather undermines it. Th ere is, however, a third possible way to accept remedial self-determination. Th e right argument would be that it is acceptable in cases where a territorially organized entity has been denied the right of representation.103 Only in this situ- ation is it possible to presume that human rights violations can trigger the right of external self-determination. However, in order not to contradict the principle of uti possidetis, this territory should possess a certain type of administrative rec- ognized status, such as an administrative (autonomous) province or federal unit. Th us, the entitlement to exercise the right to secession would not be applied to the ethnicity as a ‘people’ that has been the victim of violations, but as ‘peoples’ that live within the oppressed secessionist region. Only this approach to the doctrine of remedial self-determination can be partially applied to the process of Kosovo independence. In that direction, it should be noted that increased secessionist demands in Kosovo began when, in the dawn of the dissolution of Yugoslavia, the Milošević regime decided to abolish the broad autonomy that Kosovo had enjoyed until then. Th is approach relies on the federative and administrative structure of the former Yugoslavia and basis its argument on the right of representation that Kosovo enjoyed in the 1974 SFRY constitution. Th erefore, in order to be eff ective, the doctrine of remedial self-determination cannot be invoked alone. International law and especially the relevant state practice, as they currently stand, do not provide grounds for this. It only fi ts if it is considered in the wider perspective of the right to constitutional self-determination.
B. Kosovo as an Eff ective Entity
Th e question of eff ectiveness and its link to the right of self-determination is still relevant, especially after the ICJ Advisory Opinion on Kosovo, in which the Court did not address the issue, treating Kosovo’s Declaration of Independence as a question of fact that was not in itself unlawful. While it can be argued that the doctrines of remedial and constitutional self-determination represent a progressive development of the general right of self-determination, these theoretical concepts are tested when one analyses the cases of the so-called ‘eff ective entities’. Th ese are entities that are not entitled to any self-determination status, but nevertheless exhibit the criteria of statehood.104 Th ere should be a distinction between unlawful eff ective entities and unrec- ognized eff ective entities. In the fi rst case, the entity is established through violation of a jus cogens norm, such as prohibition of use of force (for example Northern Cyprus or Nagorno Karabakh), abuse of the right to self-determination (Rhodesia) or both (Srpska Krajina). Th e unlawfulness of these entities is usually expressed in a UNSC resolution, which also calls upon general non-recognition.
103 Weller, op.cit. note 7, 59. 104 Ibid, 70.
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Th e obligation of non-recognition can also be derived from Article 41 of the ILC Draft Articles on State Responsibility.105 In cases of unrecognized eff ective entities the situation is diff erent, as they are not established through violation of a cogent international norm. Even so, the status of these types of eff ective entities is quite ambiguous. Th ey fulfi l all the con- ditions for statehood. If one starts from the position that international law does not preclude secession per se,106 as well as the fact that recognition in international law is only a declaratory act and not a precondition for statehood, then interna- tional recognition of certain eff ective entities as separate states is merely the result of political calculations. Scholarly writings support the view that, if the eff ective entity is not estab- lished through violation of a jus cogens norm, which would make it an unlaw- ful entity that cannot expect any recognition, then seceding is not expressly precluded. Th erefore the secession of an eff ective entity is not itself unlawful.107 Moreover, recognition of a new state on territory still claimed by another existing state would only be justifi ed if eff ective control had passed from the host to the seceding state.108 However, in state practice this is more diffi cult. In many cases, the host state opposing the secession can claim that the entity is actually unlawful, justifying this with an ‘extensive’ interpretation of the existing legal norms. In other words, there have been examples of the tendency to circumvent the UN so that the ‘law- fulness’ or ‘unlawfulness’ of the entity that wishes to secede can only be based on declarations by the host state. Th ere has been a high degree of solidarity among states when it comes to the possibility of secession. Th ey can always invoke Article 2(4) of the UN Charter and the prohibition of interference in the domestic aff airs of states. In practice, therefore, many of these entities exist until they are, forcibly or otherwise, incorporated into the host state. Th e cases of Katanga and Biafra are examples of this. Considering the aforementioned, the fact of a territory establishing itself as an eff ective entity cannot be the main argument in its eff orts to secede, but rather a supporting one. In such a situation, state recognition of eff ective entities is much more of a declaratory act.109 Th is is best illustrated by the example of Somaliland’s
105 James Crawford, Draft Articles on Responsibilities of States for International Wrongful Acts with Commentaries (Cambridge University Press, Cambridge, 2001), 289. 106 Reference re Secession of Quebec, op.cit. note 17, at para. 140. Th is view has been endorsed by the ICJ, see ICJ Advisory Opinion of 22 July 2010, op.cit. note 6, para. 79. 107 Weller, op.cit. note 7, 33. 108 Bartram S. Brown, “Human Rights, Sovereignty and the Final Status of Kosovo”, 80(1) Chicago-Kent Law Review (2005), 235-272, at 262. 109 Actually, the most probable indicator for the legitimacy of a particular entity’s right to self-determination and statehood, no matter what the political calculations, is actually the international response to its quest for recognition. In that direction, Shaw concluded that: “Various modifi cations have been made [to the declarative and constitutive theory of recognition] […], but the role of recognition, at the least in pro-
116 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence struggle for recognition. If recognition was merely a declaratory act, while eff ec- tive control is what matters, then why would leading scholars such as Crawford still list Somaliland’s case along with the unsuccessful attempts for secession?110 Th is is the case notwithstanding the fact that the country’s unilateral declaration of independence had not been followed by an act by the UNSC declaring the entity unlawful. Moreover, the eff ective control of Somaliland’s authorities over the territory they claim to represent has been confi rmed on a few occasions by several diff erent authorities.111 Regarding this question, Fabry presents the view that “recognition and self- determination are two sides of the same coin”. He argues that state recognition emerged as a fully-fl edged practice to respond to the idea of self-determination.112 Th e Badinter Commission, on the other hand, expressed the view that:
[…] while recognition of a State by other States has only declarative value, such recognition, along with membership of international organizations, bears wit- ness to these States’ conviction that the political entity so recognized is a reality and confers on it certain rights and obligations under international law.113
Considering these views, it can be argued that when it comes to the issue of rec- ognition, the chances of the seceding entity achieving international recognition are negligible if it does not justify its attempt to declare independence with strong entitlement to the right of external self-determination. In this respect, Kosovo authorities have not lost an opportunity to share the information that the new country has already been recognized by a large portion of the international com- munity. What is diff erent in the case of Kosovo, however, is that its eff ective- ness was established as a result of humanitarian intervention and it was previously administered by the UN.
viding strong evidential demonstration of satisfaction of the relevant criteria, must be acknowledged. In many situations, expressed requirements for recognition may be seen as impacting upon the question of statehood, as the […] EC Guidelines indi- cate. Th ere is also integral relationship between the criteria for statehood in the sense that the more overwhelming the scale of international recognition in any given situa- tion, the less may be demanded in terms of the objective demonstration to adherence to the criteria”. Malcolm N. Shaw, International Law (Cambridge, University Press, Cambridge, 6th ed., 2008), 207-208. 110 Crawford, op.cit. note 5, 403. 111 See, for example, UN Secretary General Report S/2002/189, 21 February 2002, especially at para. 28. Similar arguments have been made in a few cases brought before the German courts, although German judicial practice remains inconsistent on this question. See Crawford, op.cit. note 5, 414, at note 145. 112 Milulas Fabry, “Secession and State Recognition in International Relations and Law”, in Pavkovic and Radan, op.cit. note 96, 51-66, at 51. 113 Badinter Opinion VIII, para. 2.
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When it comes to Kosovo, the issue of eff ective entity relates to the question of whether a prolonged period of UN administration and the fact of Serbia losing her sovereignty over Kosovo can be used as legal grounds for declaring independ- ence. As stated by Ahtisaari, the near ten-year period of international adminis- tration made a return of the province to Serbian authority impossible.114 Th e UN presence in Kosovo was established by UNSC Resolution 1244, which gave the institutions of self-governance powers in a wide range of areas, but limited them through the strong presence of a UN administration and Special Representative with the right to veto any decision taken by the Kosovo authorities.115 All these provisions were an interim solution pending the settlement of Kosovo’s fi nal status between the representatives of Kosovo and Serbia. Th e ICJ found that this was not “prejudging the outcome of the negotiating process”.116 Th ose scholars who rely only on the principle of eff ective control argue that Serbia has lost her sovereignty over Kosovo and that this decision has been con- fi rmed by the UNSC resolution. Hence, after failing to reach a settlement, Kosovo can declare independence, claiming that it has fulfi lled the statehood require- ments as laid out in the Montevideo Convention. Th is means that the question of Kosovo statehood is a matter of fact, while whether or not to recognize it is a political decision of individual states.117 Th is would be much less controversial if the decision had been taken by the UNSC. Even if that had been the case, however, it is disputable whether the broad powers of the UNSC (even under the Chapter VII provisions), actually allow it to impose limitation or even transfer of sovereignty.118 Th ere have been many instances of the UN limiting the sovereignty of a country by taking over the administration in particular regions or in the country as a whole. Th e UN missions in Bosnia, Kosovo and East Timor are examples
114 See op.cit. note 9. 115 UNSC Resolution 1244, UN Doc. S/RES/1244 (1999), especially paras. 5, 6, 10, 11. 116 ICJ Advisory Opinion of 22 July 2010, op.cit. note 6, paras. 99-100. 117 See, generally, in Hilpold, op.cit. note 44. However, in the article the author explores several theories applicable to Kosovo independence, but rejects most of them as incon- clusive. He concludes that the independence of Kosovo can be considered lawful, not because it falls within the scope of a theory of international law, but because it is a political decision by the majority of the international community. Th is view has been criticized by Orakhelashvili. See Alexander Orakhelashvili, “Th e Kosovo UDI between Agreed Law and Subjective Perception: A Response to Hilpold”, 8(2) Chi- nese JIL (2009), 285-290. 118 Th is view has been argued by Brown 8, op.cit. note 10, 256-258, based on the Namibia Advisory Opinion, Judge Fitzmaurice Dissenting Opinion, 26 January1971, ICJ Rep. 208 (1971), paras. 112–115. On the other hand, D’Aspremont fi nds that, based of the subsequent practice, it would not be “totally unprecedented for the Security Council to deal with questions pertaining to the status of a territory”, see Jean D’Aspremont, “Regulating Statehood: the Kosovo Status Settlement”, 20(1) LJIL (2007), 649-668, at 652.
118 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence of this. However, the UN administration should be regarded as a transitional mechanism, not a solution to territorial problems.119 When it comes to transfer of sovereignty, the UN has always sought a solu- tion between the countries in dispute. In the case of East Timor, Indonesia had previously accepted that a positive outcome of the East Timorese referendum on secession would be respected. In the case of Kosovo, views diff er due to the fact that there was neither Serbian consent nor a decision by the UNSC. It was clearly stated by Russia that any proposal granting Kosovo independence would be vetoed. Th e creation of a so-called ‘eff ective entity’ does not mean that can be used as the main argument in a territorial dispute. Moreover, the question of the loss of eff ective control over certain regions does not mean that the host country has also lost its entitlement to that territory. As illustrated by the cases of Cyprus (with Northern Cyprus) or Croatia (with the Republic of Srpska Krajina), loss of control does not lead to a change in internationally recognized borders. Th at said, these are instances of unlawful occupation. In the case of Transnistria in Moldova, while the entity was not expressly declared unlawful, its attempt to declare independence was not supported by any other country. All states, includ- ing Russia, recognize Moldovan sovereignty and territorial integrity. What is dif- ferent in the case of Kosovo is that Serbian loss of eff ective control came as a result of a UNSC resolution. Serbia claims that Resolution 1244 actually protects its sovereignty.120 Although it is true that the resolution reaffi rms the “sovereignty and territorial integrity” of Serbia it mentions this only in its preamble. Th erefore, the more plausible interpretation is that this was a reassurance made by the UN at the time of deployment of its administration. However, it does not preclude any possible outcome of the negotiations, including independence.121 When it was clear that a mutually accepted solution could not be reached and that the UNSC could not make a fi nal decision, all that was left was the proposal of the UN Special Envoy who advised ‘supervised independence’. Th is is only one argument in the complex case of Kosovo. It cannot be used to argue that Kosovo has a right to secede, but can only support the claim for independence. It is true that under UN administration Kosovo became a type of
119 Brown, op.cit. note 108, 259. 120 See Written Statement of Serbia to the ICJ, op.cit. note 34, at paras. 675-696. See also Written Statement of Cyprus, at,
119 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski eff ective entity, but using this approach on its own could have negative repercus- sions for international relations. Th ese implications could be twofold. Th e fi rst would be further partition of Kosovo. Given the dual approach of having the EU Rule of Law Mission (EULEX) in the non-Serbian part of Kosovo, while the UN Mission in Kosovo (UNMIK) is still present in the Serbian enclaves, this might be used as a pretext for secession of the predomi- nantly Serbian-populated northern parts of Kosovo. As already remarked, this could lead to the introduction of a general rule that only eff ective control matters. Th e result would be a similar claim for independence or merger with Serbia of the Bosnian federal entity of the Republika Srpska. A domino eff ect of ethnic claims in the Balkans and worldwide should also not be excluded. Th e second would directly undermine the UN peacekeeping role. If having a UN administration in a certain region is used as grounds for secession, countries would be less reluctant to accept UN engagement. It might even provoke more violence, as the secessionists would have an interest in being more radical in order to trigger UN intervention. On the other hand, every UN deployment would be subject to increasingly serious political calculations by UNSC member states, especially by the permanent members.122
IV. Procedural Aspects and Implications of Kosovo’s Independence: Is a New Law Regulating the Process of Obtaining Independence Emerging? As explained, international law itself does not prohibit or allow secession. According to the generally accepted view, the state is a matter of fact. However, recent developments in the Balkans and the Caucasus and the response of the international community give grounds to argue that there are emerging norms of international law that might regulate the process of obtaining statehood. Analysing the 1992 Joint Report for the Quebec Commission prepared by fi ve distinguished international law scholars on questions related to Quebec’s accession to sovereignty, Th omas Franck argued that the process of secession must respect three basic rules which, if not fulfi lled, would preclude endorsement of the act of independence by the international community.123 Th ese rules are: (i) secession cannot be obtained by use of force;124 (ii) the seceding entity (the newly emerging state) must grant minority rights to its own minorities; (iii) it must undertake some form of ‘due process’ within the host state.
122 See Goodwin, op.cit. note 98. 123 Th omas M. Franck, “Remarks, Panel on Communities in Transition: Autonomy, Self- governance and Independence”, 87 Proceedings of the American Society in International Law (1993), 261. 124 Th e use of force to obtain self-determination is justifi ed only in liberation movements directed against colonial regimes.
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Only if the seceding entity respects ‘due process’ can secession be considered to have occurred ‘lawfully’, giving rise to the birth of a new state “endowed with the full legal personality accompanying statehood”.125 If this is not the case, the con- sequences are to be determined by the international community. Considering the fi rst requirement, there is unambiguous state practice about the entities that are created through the use of force, as they represent a clear violation of a jus cogens norm. Th e UNSC can declare the seceding entity invalid, along with all acts of the self-declared authorities. Moreover, it can call for non- recognition by the international community.126 Th e situation is more complicated when there is no UNSC decision and there are diff erent views among the states, as in the cases of Kosovo, Abkhazia and South Ossetia. As far as the second requirement is concerned, the international community has already set the standards for granting minority and basic human rights within the seceding entity. Th is was the idea that underpinned Badinter opinions II and III, and notably the EC Guidelines on Recognition of New States.127 In Kosovo, application of the ‘standards before status’ policy or the so-called ‘earned sover- eignty’ approach also confi rms this view.128 However, considering the obligation of ‘due process’ within the host state, the situation is far from clear. In most of the cases of secession to date, consent by the host state has ultimately been obtained. Th is has usually been done through a peace process, for example in the secession of Eritrea, Southern Sudan or the possible secession of Bougainville. Usually, the right to secede has been expressly vested in the peace treaty, the state constitution or both, as explained in section II
125 Antonello Tancredi, “A Normative ‘Due Process’ in the Creation of States through Secession”, in Kohen, op.cit. note 64, at 194. 126 Ibid. 127 Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, Extraordinary EPC Ministerial Meeting, Brussels, 16 December 1991, EC Bulletin, No.12 (1992), 119. 128 Paul R. Williams and Francesca Jannotti Pecci, “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-Determination”, 40(2) Stanford JIL (2004), 347- 386, at 383-384; Bernhard Knoll, “From Benchmarking to Final Status? Kosovo and the Problem of an International Administration’s Open-Ended Mandate”, 16(4) EJIL (2005), 637-660, at 643-644. For the ‘earned sovereignty’ approach, see Nathan P. Kirschner, “Making Bread From Broken Eggs: A Basic Recipe For Con- fl ict Resolution Using Earned Sovereignty”, 28(4) Whittier Law Review (2007), 1131- 1166; Paul R. Williams and Karen Heymann, “Earned Sovereignty: An Emerging Confl ict Resolution Approach”, 10(2) ILSA Journal of International and Comparative Law (2004), 437-446; Paul R. Williams, Michael P. Scharf and James R, “Resolving Sovereignty Based Confl icts: Th e Emerging Approach of Earned Sovereignty”, 31(3) Denver JILP (2003), 349-354; James R. Hooper and Paul R. Williams, “Earned Sovereignty: Th e Political Dimension”, 31(3) Denver JILP (2003), 355-372; Michael P. Scharf, “Earned Sovereignty: Th e Juridical Underpinnings”, 31(3) Denver JILP (2003), 373-386; Paul R. Williams, “Earned Sovereignty: Th e Road to Resolving the Confl ict Over Kosovo’s Final Status”, 31(3) Denver JILP 387 (2003), 387-426.
121 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski of this paper. Th is made it much easier for the international community to explain the secession, as it was ultimately treated as a domestic aff air of the host state. All cases of express constitutional self-determination incorporate standard legal mechanisms that have the task of proving the wish of the ‘peoples’ of the seceding entity for independence. Th is takes the form of a referendum or a dec- laration by the representative organ, or sometimes both. In the meantime, most constitutional solutions require that some form of negotiation or reconciliation process take place before independence is formally declared.129 Scholarly writings, however, do not elaborate on the question of what will happen if this ‘recon- ciliation process’ fails and the host state simply decides not to grant the right to secede. Th ere is also the issue of the attempted secession of a constitutive entity that does not have an express right to secede, which was analysed in the authorita- tive Reference Regarding Secession of Quebec.130 Th e case of the unilaterally declared independence of Kosovo, and the role of the international community in it, might off er new insight into these dilemmas. Th is is because, apart from Kosovo and now Abkhazia and South Ossetia, all other cases of secession occurred with agreement between the host and seceding state.131 Moreover, these entities have not been entitled to an express right of constitutional self-determination. Th is section will analyse the process of Kosovo fi nal status negotiations and compare it against the Quebec Reference and recent developments in the Caucasus. It will not only outline the key principles of the international community, but will also examine whether international norms regulating the process of secession are emerging.
A. Final Status Negotiations and Unilaterally Declared Independence
After the NATO intervention and the signing of the Kumanovo Agreement that obliged the Serbian army to withdraw from the boundaries of Kosovo,132 the UNSC adopted Resolution 1244. Th is resolution was supposed to set up an interim framework to end hostilities, until Kosovo’s fi nal status was determined. In the preamble it expressed the commitment of the UNSC to the “sovereignty and territorial integrity” of Yugoslavia. It also stated that an agreement should be reached leading to resolution of the Kosovo crisis. Th e principles for this interim agreement were specifi ed in Annex 2. It was determined that there would be:
129 Weller, op.cit. note 7, at 47-48. 130 See op.cit. note 17. 131 Where mutual consent for secession is not achieved, although the entity is not unlawful per se the practice of the international community was simply to ignore its self-declared independence. A clear example of this is the attempt by Transnistria to secede from Moldova. In the case of Kosovo, Abkhazia and South Ossetia, there is no such consensual approach. 132 See Military Technical Agreement between KFOR and the Governments of the FRY and the Republic of Serbia, 9 June 1999, at
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[a] political process [leading] towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the [FRY] and the other countries in the region and the demilitarization of the [Kosovo Liberation Army]. Negotiations between the parties should not delay or disrupt the establishment of democratic self- government institutions.133
Th rough this resolution Kosovo was established as a UN protectorate. UNMIK became the interim administration in the province, during the process of estab- lishing the “democratic institutions of self-governance”. Kosovo local authorities had to implement the standards set by the international community.134 Th is proc- ess has been described by analysts as the ‘earned sovereignty’ approach,135 which focused predominantly on the obligation of Kosovo local authorities to develop capable and sustainable institutions, able to guarantee established human rights standards, especially concerning the protection of minorities. During this period of administration, Serbia lost eff ective control over the territory of Kosovo. Th e capacity of the institutions of local self-governance increased, although relations with UNMIK representatives were ambiguous in relation to the process of sharing sovereignty. Th is position also referred to the question of fi nal status negotiations, where the international community endorsed the view that UNMIK should be excluded from the task of mediating the negotia- tions, in an eff ort to avoid a confl ict of interest and enable, as far as possible, an impartial process.136 After a lengthy period of UN administration, followed by implementation of the UNSC framework known as ‘standards before status’, the UNSC authorized the start of fi nal status negotiations. Th ese were held in March 2007 in Vienna and were mediated by the UN Special Envoy Martti Ahtisaari. During the nego- tiations, Serbia took the position of substantial autonomy for Kosovo, which was within the framework of the ‘no return to the pre-1999’ position but was not inde-
133 UNSC Resolution 1244, UN Doc.S/RES/1244 (1999), Annex 2, para. 8. 134 For the legal status of territories subject to international administration, see Eric de Brabandere, Post-confl ict Administrations in International Law: International Ter- ritorial Administration, Transitional Authority and Foreign Occupation in Th eory and Practice (Martinus Nijhoff , Leiden, 2009); Carsten Stahn, Th e Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge Uni- versity Press, Cambridge, 2008); Ralph Wilde, International Territorial Administra- tion: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press, Oxford, 2008); Bernhard Knoll, Th e Legal Status of Territories Subject to Admin- istration by International Organizations (Cambridge University Press, Cambridge, 2008). 135 See op.cit. note 128. 136 Knoll, op.cit. note 128, 658-660.
123 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski pendence. Th e President of Kosovo, on the other hand, said: “Independence is the alpha and omega, the beginning and end of our position”.137 It was here that the diff erent readings of Resolution 1244 were seen for the fi rst time. Serbia considered that it precluded granting independence for Kosovo. Kosovo, as well as most of the Contact Group members, except Russia, consid- ered it an interim framework that referred to a period of UN administration; the resolution protected Serbian sovereignty, but did not exclude independence as an outcome of fi nal status negotiations.138 As noted above these opposing arguments have been, and are still being, used in the dispute over whether Kosovo had the right to unilaterally declare independence.139 On the other hand, the position of the Contact Group was that there would be no return to the situation prior to 1999, nor should there be change to Kosovo’s borders or merger with another state. Th is aimed to preclude possible outcomes such as partition of Kosovo, unifi cation of Kosovo with Albania, or destabiliza- tion of Macedonia.140 Th e position of Russia, on the other hand, was that any outcome of the negotiations should be confi rmed by a UNSC resolution. In that way it wanted to protect Serbia from an imposed solution. After the fi rst round of negotiations, Ahtisaari presented his draft proposal.141 Th e document was only accepted by Kosovo as Serbia considered that it implied independence, although the word ‘independence’ was never explicitly mentioned. In some respects Serbia has been faced with accepting controversial solu- tions, notably in relation to the Ahtisaari proposal. However, as noted by Weller, if the international community was a step behind developments in Kosovo, Serbia and the solutions it presented during the process were not one but two steps back.142 If it had off ered substantial autonomy during the Rambouillet Process or even the so-called ‘Hong Kong model’ of ‘one country–two systems’, as it later proposed, the outcome would have been signifi cantly diff erent. Even if Serbia had accepted the full Ahtisaari proposal from the beginning, while retaining nominal attachment to the territory (‘the Taiwan Solution’), it would again have forced the Kosovo delegation to explain why full independence was still necessary.143 After the second round of negotiations it was obvious that there was no pos- sibility of an agreement. Th erefore, Ahtisaari announced that he would present his recommendations, including on fi nal status. In his fi nal recommendation, he proposed ‘supervised independence’ as the only tenable solution for Kosovo as it
137 Statement of President Fatmir Sejdiu, quoted at
124 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence is a “unique case that demands a unique solution” and “does not create precedent for other unresolved confl icts”.144 He emphasized that after more than a year of negotiations and expert consultations, it was clear that a mutually agreeable solu- tion was not possible.145 Th erefore, by presenting his nalfi recommendation, he returned the issue to the UNSC. As expected, Belgrade was outraged by the recommendation. Russia declared that any solution not supported by Serbia would not pass in the UNSC.146 A simi- lar position was to be expected from China. Th e inability of the UN to reach a common position made it inevitable that Kosovo would proceed with its plans unilaterally. On 17 February 2008, the Kosovo assembly (with the Serbian rep- resentatives abstaining) voted unanimously in favour of the Kosovo Declaration of Independence. As mentioned above, Kosovo unilaterally accepted all the pro- visions of the Ahtisaari proposal for supervised independence, as well as the Rambouillet Accords. Th e very fi rst recognition came from the United States, the United Kingdom and France. Russia stated that Kosovo’s independence was a violation of international law and that it would set a precedent for secessionist movements throughout the world.147 Th e question for international lawyers will be whether this process of nego- tiations made Kosovo’s unilateral declaration of independence legitimate. Th e ICJ underlined the statement by the authors of the Declaration that negotiations had failed, and that “a critical moment for the future of Kosovo had been reached”.148 Th e Ahtisaari recommendation was not legally binding. However, in the same way as the Badinter opinions, it was highly infl uential. Th e duration of the talks and the fact that they were undertaken by a UN Special Envoy in consulta- tion with experts in the fi eld support this view. Th e ICJ elaborated on fi nal status negotiations and underlined that the Kosovo Declaration of Independence “must be seen in its larger context, taking into account the events preceding its adaptation, notably relating to the so-called ‘fi nal status process’”.149 Th e Recommendation should be set against the context of the negotiations process and the burden of conducting it in ‘good faith’. Th e answer to this question gives signifi cant legiti-
144 Statement of the UK Permanent Representative to the UN, op.cit. note 9, para. 15. 145 Ibid, para. 1. 146 Statement of the Russian Representative to the UN, Mr. Churkin, UN Doc. S/ PV.5673. 147 Statement of the Russian Representative to the UN, Mr. Churkin, UN Doc. S/ PV.5839. 148 What is particularly interesting, however, is that in the same paragraph the ICJ examined the language to fi nd that it “indicates that the authors of the declaration did not seek to act within the standard framework of interim self-administration of Kosovo, but aimed to establish Kosovo as a sovereign and independent state”. See Advisory Opinion of 22 July 2010, op.cit. note 6, para.105. It can be assumed that this formulation will provoke both great interest and critical debate in future scholarly writings. 149 Ibid., para.104.
125 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski macy to one of the sides and will be outlined in the response by the international community to the unilateral declaration of independence. In cases of the unilat- eral independence of a constitutional entity without the express entitlement to secede, the Quebec Reference might off er possible solutions. Finally, recent devel- opments in Abkhazia and South Ossetia and the international response regarding their self-declared independence might shape the doctrine further.
B. Obligation to Negotiate the Final Status and the Possible Outcomes: Comparison between the case of Kosovo and the Quebec Reference Opinion
Th ere are two ways in which the case of Quebec can be related to the way Kosovo obtained—albeit contested—statehood. Th ese aspects touch upon the obligation of the Canadian government to conduct negotiations with Quebec over the issue of secession and the role of the international community in the process. In the famous Reference re Secession of Quebec the Canadian Constitutional Court started from the view that secession is neither strictly forbidden nor approved by international law, and that minorities have a right to self-determination within the existing state. As Quebec was a constitutive entity of Canada, the expression by a clear majority of the people of Quebec of the desire to secede would create an obligation on the central government to negotiate. Even so, the Court emphasized that the Quebec authorities “do not enjoy a right in international law to eff ect the secession of Quebec from Canada unilaterally”.150 Th e Court considered that sovereignty was vested in the ‘people’ of Canada as a whole and not in the separate entities as members of the federation. Yet, both the central authorities and the other federal units must recognize the vote of the major- ity as expressed in a referendum over secession, which would lead to the initiation of negotiations between the representatives of Quebec as the seceding entity and the Canadian central authorities. In this respect the Court concluded that:
A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of the exercise of its rights, and the ultimate acceptance of the result by the international com- munity.151
It is evident that the “ultimate acceptance of the result” depends on whether the negotiations have been conducted in good faith.152 In the case of a negotiations deadlock, this is something that the organized international community would ultimately decide. For Quebec this would depend on whether or not it recognized
150 Reference re Secession of Quebec, op.cit. note 17, para. 154. 151 Ibid, para. 93. 152 Daniel Turp, “Quebec’s Right to Secessionist Self-determination: Th e Colliding Paths of Canada’s Clarity Act and Quebec’s Fundamental Rights Act”, in Dahlitz J. (ed.), op.cit. note 22, 167-206, at 170.
126 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence the secession of Quebec as creating an independent state. If Canada were consid- ered to be obstructing negotiations, then it would be more likely that unilateral secession by Quebec would be accepted and prompt recognition extended, even without Canada’s consent. As already argued, in cases of contested secession, rec- ognition by the international community is much more than a declaratory act. Besides expressing their political standpoint on the issue, the recognizing states want to support their decision with reference to international law. If the seceding entity cannot justify the legitimacy of its claim, then it is doubtful whether it will obtain recognition. It is here that certain parallels can be drawn with relations in Kosovo. As explained, the attempted settlement of Kosovo’s fi nal status was carried out through UN-mediated negotiations in Vienna. After the UN Special Envoy Ahtisaari concluded that there was no prospect of a mutually agreed solution, he gave his recommendation for supervised independence. As Kosovo’s unilat- eral declaration of independence was recognized by a large portion of the world’s countries,153 it can be also concluded that the burden of proving ‘good faith’ nego- tiations was weighted slightly towards Serbia. Th e question that arises is why this happened, as Serbia off ered solutions during the negotiations while Kosovo refused to budge from its position of ‘inde- pendence at any cost’. Th ere are two possible reasons for this. First, the Serbian side rejected the fi rst Ahtisaari proposal, on the grounds that it included too many elements of statehood. Th e document did not mention ‘independence’ specifi cally, but it did indeed contain certain controversial aspects that implied elements of statehood. Th e main one concerned the position of Kosovo in international relations: Kosovo would be able to conclude international treaties and apply for membership in international organizations. Although this might well be seen as implied independence, there are certain entities that have a level of internationally recognized legal personality which have not obtained statehood.154 Th e Chinese White Paper on Taiwan also off ers a wide range of autonomy, including the right to conclude “commercial and cultural agreements with foreign countries” and to “keep its military forces”.155 Quebec, on the other
153 Th is not only refers to the number of countries that recognize Kosovo, but also to what Grant considers as recognition with ‘added weight’. Namely, in Grant’s view, “recognition takes on added weight when it originates from (1) powerful states; and (2) a representative of a cross section of the international community”. See Th omas D. Grant, Th e Recognition of States: Law and Practice in Debate and Evolution (Praeger, Westport, 1999), 90. 154 D’Aspremont, op.cit. note 118, 655. However, D’Aspremont claims that they are sui generis cases arising from the decolonization process or Cold War international rela- tions, and that it is arguable whether they can be related to the proposed Kosovo position. 155 Jean-Marie Henckaerts, “Self-determination in Action for the People of Taiwan”, in id. (ed.) Th e International Status of Taiwan in the New World Order (Kluwer Law, London, 1996), 241-258, at 245.
127 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski hand, has given itself the right to conclude international treaties or to alter those concluded by the Canadian government that refer to it, but did not have its prior consent.156 By the same act it claimed to have the right of limited international representation. Secondly, Serbia limited the possible outcome by changing its constitu- tion and declaring Kosovo to be an inalienable part of Serbia. In another context this might have been seen as the legitimate right of a sovereign government, but against the historical background of the Kosovo crisis—where at the beginning of the breakup of Yugoslavia Serbia unilaterally abolished Kosovo’s autonomy—it brought back painful memories. A parallel can be found in the case of Quebec, where the central government was considered to have obtained an advantage by passing the so-called ‘Clarity Act’.157 Th is act, which was adopted by outvoting Quebec representatives, pro- vided the central government with additional leverage in the negotiations process by giving it the right to assess the clarity of the referendum question.158 It can be concluded that the burden of conducting the negotiations in good faith lies with the host state, and that any use of its ‘overarching’ sovereignty to limit the position of the other side should be considered as undermining the nego- tiations process. Th is does not mean that the secession entity is privileged at any cost, but rather that during the negotiations it should be protected from outvoting (by the majority) or other kinds of obstacles imposed by the host state.
C. Kosovo and the Cases of Abkhazia and South Ossetia
In the cases of Abkhazia and South Ossetia, Russia quickly learned the lesson from Kosovo. Th e arguments used to justify the independence and the prompt recognition of these new, self-proclaimed republics, were a carbon copy of the arguments used in the case of Kosovo. However, even if Abkhazia and South Ossetia could rely only on certain aspects of the Kosovo case in arguing for their entitlement to self-determination, the process during which they declared inde- pendence was highly controversial and did not support their claim for interna- tional recognition.159 It seems that Russia tried to ‘seize the moment’ and rush
156 See An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Quebec People and the Quebec State (Fundamental Rights Act), at
128 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence through the independence of those provinces it considered allies in the strategi- cally signifi cant region of Caucasus. Th is accelerated process of Russian recogni- tion was carried out in the period before the ICJ Advisory Opinion, when many countries still considered Kosovo’s act of unilaterally declared independence to be against international legal norms. What is particularly interesting is that when it comes to justifying entitle- ment to self-determination, Russia—as the main ally of Abkhazia and South Ossetia—relied on the doctrine of constitutional self-determination, supported by the doctrine of remedial self-determination. Actually, the additional element of remedial secession is tied in with the constitutional entitlement, as in the case of Kosovo. During an intense UN debate, the Russian Permanent ambassador to the UNSC stated:
As for the grounds for recognition of the independence of Abkhazia and South Ossetia […] I asked my legal aff airs advisers […] and they gave me the follow- ing: after the creation of the independent Soviet Socialist Republic of Abkhazia in December 1921, and recognition of its independence by the Revolutionary Committee of the Soviet Socialist Republic of Georgia, Abkhazia and Georgia concluded a union agreement as an alliance between two equal entities. Th us, State and legal relations between them were established on the basis of a trea- ty.160
Generally, Russia follows a similar line to the case of Kosovo: that the right of self-determination is tied in with constitutional entitlement and is not lost, even if the entity was integrated for a certain period within the host state. Similarly, as in the case of the dissolution of the SFRY, Russia argued that when Georgia decided to leave the USSR, the inherent right of self-determination should have been invoked:
Russia took that position despite the fact that Georgia, in declaring its own independence, had violated the rights to self-determination of the people of Abkhazia and South Ossetia. In accordance with the law of the Union of Soviet Socialist Republics on the procedure for the resolution of issues linked to the secession of a republic from the Union, autonomous entities within the Union’s republics had the right to independently resolve the issues of whether or not to remain part of the Union and of their legal status in the event of the repub- lic’s secession from the Union. Georgia prevented Abkhazia and South Ossetia from exercising that right.161
Volume II (Georgia Report), at
129 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski
However these arguments can also be used, not only in relation to Kosovo, but in favour of secessionist claims inside Russia. Hence the very same statement might be applied to Chechnya for example; the Chechens should have been able to invoke their self-determination status. Moreover, while in Georgia there was a state referendum on independence,162 in Chechnya there was no referendum at all, as although the USSR at least offi cially disintegrated, Russia proclaimed itself to be the sole successor. In addition, as mentioned above, in 1996 Russia granted the Chechens the right to self-determination, albeit implicit, which was soon abol- ished.163 Th e same argument applies even more to Kosovo, as the whole state of the SFRY disintegrated. Th e prolonged claim by Serbia that it is the legal successor to the SFRY has not been supported by the international community, including by Russia. At the same time Russia denies Kosovo the right to self-determination, claiming it to be ‘the historic heart of Serbia’.164 Moreover, arguing that the inde- pendence of the two new republics in the Caucasus is permissible, Russia relies on the very same UN documents that it considers to preclude the independence of Kosovo, notably the Helsinki Final Act and the Declaration on the Principles of International Law. According to Russia’s view, the event that triggered the self-determination right of Abkhazia and South Ossetia was the Georgian armed campaign against the secessionist regions initiated in the late hours of 7 August 2008. It was then that the Georgian president “put paid to the territorial integrity of Georgia”.165 On the one hand, it can be argued that established eff ective entities are protected from forcible incorporation.166 Moreover, before the start of the armed campaign, Russian President Dmitry Medvedev has asked that Georgia sign an agreement with Abkhazia on the non-use of force as a precondition to further talks.167 Nevertheless, it was still not easy for Russia to argue for the right to reme- dial self-determination. After all, both Abkhazia and South Ossetia had been out of the eff ective control of the Georgian authorities for years. In the meantime, there were reports of gross human rights violations aimed at ‘ethnic ‘cleansing’
162 Similarly as in the case of Kosovo, the Abkhaz and South Ossetians boycotted the referendum. Th e referendum on independence that they organized was not recog- nized by the international community. On the other hand, Georgia claims that during the referendum on independence (of Georgia), the people from the two prov- inces were given the right to vote and that the majority of the population in both Abkhazia and South Ossetia supported separation of the country from the USSR. 163 Weller, op.cit. note 7. 164 Statement of Vitalij Curkin, op.cit. note 160, 18. 165 Statement by the Russian Ministry of Foreign Aff airs, 26 August 2008, at
130 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence of the ethnically Georgian population.168 Th is gave ground to the statements by Georgian offi cials that the right to self-determination applied to everyone and not just to that part of the population that remained after the exodus of non- Abkhazian or non-South Ossetian groups.169 As argued in Part III, the debate about human rights violations highlights the main shortcoming of the doctrine of remedial self-determination—that it can be based on biased interpretations. However, even if one takes the Russian argu- ments into consideration, what is signifi cantly diff erent between these two cases and Kosovo is the process that led to the declaration of independence. Kosovo’s declaration came almost ten years after the NATO intervention. Th ere were years of preparations followed by a long process of supervised monitoring to fulfi l stand- ards, and many rounds of multilateral negotiations on the issue of fi nal status. Th e unilaterally declared independence of the two Georgian provinces and Russian recognition came after only 19 days, without any ‘due process’. Th e Russian intervention in Georgia was conducted under the cloak of humanitarian intervention, supported by dubious arguments that drew parallels with the case of Kosovo.170 However, the armed campaign ended with approval of the so-called ‘Six Point Plan’ by the Russian and Georgian presidents, mediated by the French President Nicolas Sarkozy.171 One of the provisions of the plan was the withdrawal of Russian forces and their replacement by international peacekeepers—an obligation with which Russia failed to comply. Even if it were possible to argue that force should be used to pre- vent humanitarian suff ering, the doctrine of humanitarian intervention states that this can only occur when the threat is imminent; as soon as it is overcome, the UN should take over.172 Th e fact that Russia not only used force unilaterally but then refused to withdraw, creating a buff er zone between Georgia and the seces-
168 GA Resolution 62/249 (2008) noting OSCE summits’ conclusions from 1994 (Buda- pest), 1996 (Lisbon) and 1999 (Istanbul). Georgia accused Russia to support these actions. Th erefore, she fi led a case in ICJ against Russia, claiming that Russia’s actions violated the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination. Nevertheless, due to procedural issues, the case did not reach the merits phase. 169 Statement of the Ministry of Foreign Aff airs of Georgia from 27.08.2008, at
131 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski sionist regions, was suffi cient legal ground for declaring the entities unlawful.173 However, because of the possibility of a Russian veto in the UNSC and the fact that it already recognized the two new republics, this outcome was precluded. Th ere was no prospect for a UNSC resolution, as in the cases of Northern Cyprus or Nagorno-Karabakh. When arguing for the right of constitutional self-determination supported by the doctrine of remedial secession, even if one accepts the notion that Abkhazia and South Ossetia are constitutive entities of Georgia that have acquired a cer- tain level of eff ectiveness, two issues arise when they are compared to the case of Kosovo. Th e fi rst is the position of the UNSC and its resolutions on Georgia, which leave no doubt that the fi nal outcome of the political process should respect the territorial integrity of Georgia, unlike the case of Kosovo where Resolution 1244 created an interim framework that temporarily protected Serbian sovereign- ty.174 Th e second is the issue of good faith negotiations. In this regard, it is impor- tant to mention that the biggest dispute over the Six Point Plan was in relation to the last provision—the opening of “international discussions over security and stability modalities in Abkhazia and South Ossetia”. Th e disagreement was over whether the plan would include talks about the future status of Abkhazia and South Ossetia.175 Even if this notion was accepted, as the Russian representatives claimed, declaring independence in a period of just a few weeks, and following it with Russian recognition in under 20 days, created serious doubts. On the one hand, there were negotiations regarding the status of Abkhazia and South Ossetia before the Georgian attempt to establish control by military intervention,176 with Russia acting as the principal mediator. In its formal dec- laration regarding the decision to recognize the two seceding entities, Russia referred to the failure of the negotiations process and to Georgian provocations.177
173 Th e Georgia Report expresses the view that due to Russian de facto control over South Ossetia, the province does not fulfi l the statehood criteria, especially the threshold of eff ective government. A similar conclusion was drawn in relation to Abkhazia, but for diff erent reasons. Although it can be argued that Abkhazia reached some level of eff ectiveness, the province had expelled ethnic Georgians, refused to allow return of the internally displaced persons, and failed to meet any of the minority protection standards. See Georgia Report, op.cit. note 159, 132-135. 174 UNSC Res. 896 of 31 January 1994, para. 5 [on the situation in Abkhazia]: “Stresses that substantive progress must be made immediately on the political status of Abk- hazia, respecting fully the sovereignty and territorial integrity of the Republic of Georgia, if the negotiations are to succeed and further confl ict is to be avoided”. A similar position was adopted in UNSC Resolution 1065, 12 July 1996. 175 See Statement of the Russian representative, op.cit. note 160, 18-19. 176 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia), at
132 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence
However, even prior to military intervention, Georgia was the side that presented possible solutions and off ered diff erent federal arrangements (though under the threat of use of force, if necessary), while Abkhazia and South Ossetia refused the proposals.178 Moreover, Abkhazia and South Ossetia had already declared independence long before that, had expelled ethnic Georgians, and had generally obstructed the negotiations process. Finally, in the interim period between the military intervention, the Six Point Plan and the subsequent Russian recogni- tion, negotiations in ‘good faith’ became no negotiations at all. All this makes the Russian position diffi cult to defend. It can be argued, therefore, that Abkhazia and South Ossetia have not fulfi lled the threshold required for good faith negotiations, as laid down in the Quebec Reference and applied in the case of Kosovo. As a reminder, it should be noted that the Kosovo fi nal status negotiations were mediated by the UN Special Envoy. In that process, Russia was also included through the so-called ‘Troika’. In the end, when negotiations failed, it was the report of the UN Envoy that recom- mended independence. Th erefore, as stated above in the context of the secession of Quebec, the seceding entity that has not fulfi lled the obligation to negotiate its future status in ‘good faith’ cannot expect broad international recognition. Th is has been con- fi rmed in practice, as to date only Russia, Nicaragua, Venezuela, Nauru, Tuvalu and Vanuatu179 have recognized the self-declared republics.
V. Conclusion Kosovo’s unilateral declaration of independence which was promptly recognized by several powerful and infl uential countries, and fi ercely opposed by others, has generated a great deal of controversy among scholars and within the international community. Th is is probably because the case of Kosovo touches upon the key issues of sovereignty and territorial integrity, and the right to self-determination. Some scholars claim that the approach to Kosovo has been dictated by realpolitik, claiming that the “uniqueness lies only in the eye of the beholder”,180 and that a precedent has been set. Th is article claims that the uniqueness of the Kosovo case lies in the particu- lar combination of self-determination entitlements. Kosovo is the last chapter in the dissolution of the former SFRY and can be explained by the doctrine of con- stitutional self-determination, supported by the doctrine of self-determination as a remedial right, as well as the fact that Kosovo existed as an eff ective entity for a period of almost ten years. Th us, if Kosovo serves as precedent, it sets the thresh-
178 Georgia Report, op.cit. note 159, 56. 179 Vanuatu has recognized only Abkhazia, not South Ossetia. 180 Rein Müllerson, “Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia”, 8(1) Chinese JIL (2009), 2-25.
133 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski old for exercising the right to external self-determination so high that it cannot be met by any other pending case in the world today.181 When it comes to constitutional self-determination it should be noted that external self-determination status can only be given to constitutive entities defi ned in territorial terms. Th ese are entities that have had separate status since the crea- tion of the state, usually due to special political and historical reasons. Th e same rule does not apply to entities that obtained such a position through a process of dissolution. As argued in Part II, Kosovo was a constitutive entity of the former SFRY since the establishment of post-World War II Yugoslavia. Th ere was a legal act declaring the will of the people of Kosovo to join the SFRY as part of federal Serbia, in exchange for a wide range of self-governance powers that led scholars to consider the province a de facto republic. Because Kosovo made the decision to join Serbia as a part of the SFRY, the logical solution would be that when the SFRY was offi cially considered to be in a process of dismemberment, the ‘peoples’ of Kosovo should have been given the right to invoke their self-determination status. Such a solution was endorsed by the Law on Secession from the USSR.182 However the international community, given the problems it was facing at the time, avoided addressing this issue. Nevertheless, Kosovo was not granted the possibility to exercise its self- determination status in the same way as the Yugoslav republics, and can be con- sidered as having been integrated into Serbia without giving its consent. However, this does not imply that the right to self-determination right was lost. On the con- trary, it was preserved, giving Kosovo a kind of implied self-determination status which was later revived in the light of the circumstances that Kosovo faced and in accordance with the strict procedure outlined by the international community. Kosovo’s quest for independence is also supported by the fact that the prov- ince suff ered human rights violations and the abolishment of its right of repre- sentation. Th e NATO-led intervention and the setting up of Kosovo as a UN protectorate enabled the province to develop institutions of self-governance, while Serbia lost eff ective control. Th is does not mean that the right of remedial self- determination can be applied. Remedial self-determination is a concept developed by legal scholars and has not been reinforced by suffi cient state practice. Moreover, the introduction of the doctrine of remedial self-determination might raise serious issues that can destabilize the international system, undermining the foundations of the right to self-determination, especially the established principle of uti pos- sidetis. Th e cases in Abkhazia and South Ossetia illustrate that this doctrine can be easily abused. A similar conclusion can be drawn if the narrowly considered principle of eff ectivité is applied. It might imply that the concept of the use of force is the only solution leading to secession, especially in situations where the UNSC is prevented from reaching a decision.
181 If any comparison can be made, it might be argued that there are certain similarities only with the case of Somaliland. 182 Law on Procedures for Resolving Questions Related to the Secession, op.cit. note 56.
134 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Implications of Kosovo Independence
Th e case of Kosovo’s independence shows that self-determination status, if not exercised in the right moment, can be preserved and revived under certain circumstances. As argued in Part IV, the international community is moving towards stipulating the process requirements for the exercise of such a right. Apart from proving the will of the population beyond reasonable doubt by standard legal mechanisms, such as referenda, there is also an obligation to negotiate status. Th is means that the seceding entity has to go through a type of mediation process. Th e implications of the case of Kosovo might provide answers to two important ques- tions. Th e fi rst is how this process should be conducted and what the requirements are. Th e second refers to the problem of unsuccessful negotiations, especially if the negotiations fail and the seceding entity declares independence unilaterally, without the consent of the parent state. If the secessionist entity negotiates in ‘good faith’ it is more likely that the international community will recognize its independence and vice versa. Th e case of Kosovo shows that the use of overarching sovereignty by the host state to pre- sume status, outvote the seceding entity and implement unilateral constitutional changes during the negotiations process, is not regarded by the international com- munity as an acceptable approach. Of course, this does not imply that the entity has to be granted consent to leave. Th is requirement of ‘good faith’ is even more evident in the cases of Abkhazian and South Ossetian, where the two provinces also tried to invoke their constitutional self-determination status. Th e lack of any kind of status negotiations resulted in almost universal opposition to their inde- pendence by the international community . Kosovo confi rms the view that the international community has moved beyond the understanding that the secession and creation of states is a mere ques- tion of fact acknowledged by international law. Since the Badinter Commission, the international community has seen secession as a process that should be medi- ated. Moreover, the international community has plenty of tools at its disposal to impose higher human rights standards on the new state, and to prevent possible destabilization with internal or external consequences.183 Th e doctrine of constitutional self-determination, or more precisely the view that Kosovo is the last chapter in the dissolution of the SFRY, is the only one that can currently explain the process of Kosovo independence. It will actually prevent the setting of a dangerous precedent that might undermine the stabil- ity of the international system and regional security in the Balkans and beyond. Application of this theory will also protect the established principle of uti possidetis and what Pellet calls the heterogeneous notion of ‘people’.184 Hence, the interna- tional community (or the part that recognizes Kosovo) will avoid the accusation that it has changed the established rule that minorities only have a right to inter- nal self-determination. Among scholars, including those supporting the doctrine of remedial self-determination, there is consensus that international law and the state practice do not support secession of minorities, especially if they have been
183 D’Aspremont, op.cit. note 118, 668. 184 See Pellet, op.cit. note 35.
135 Downloaded from Brill.com09/24/2021 09:23:45PM via free access Boshko Stankovski granted minority rights and the possibility to participate in the decision-making process.185 Considering the political and security implications, the biggest challenge is the possibility of partition of Kosovo, as it will undermine the basic principles of the right to self-determination, including uti possidetis. Th is will lead to the con- clusion that it is possible to draw borders along ethnic lines and could lead to many new confl icts. As noted by a key player in recent Balkan developments, this is the outcome that the international community has always tried to prevent.186 Such a scenario, at least from the perspective of international law, can only be avoided if the doctrine of constitutional self-determination is applied. It will provide the predominantly Serbian-populated part with the right to internal self-determina- tion (which is also in accordance with the Badinter opinions), but preclude further secession. Other types of ethnic regrouping will be prevented, including disrup- tion of the unity of Bosnia and Herzegovina. Only in that way can the independ- ence of Kosovo help close the last controversial chapter in the Balkan confl ict, so that the region can move forward towards integration and leave nationalism and irredentism behind.
185 Christian Tomuschat, “Secession and self-determination” in Kohen, op.cit. note 58, 23-45, at 37. 186 David Owen, Balkan Odyssey (Harcout Brace and Co., San Diego, 1997), 34.
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