Why did Russia accept the legal framework that led to Kosovo's independence?

Why did Russia accept the legal framework that led to Kosovo's independence?


We are searching data for your request:

Forums and discussions:
Manuals and reference books:
Data from registers:
Wait the end of the search in all databases.
Upon completion, a link will appear to access the found materials.

Kosovo's unilateral secession was judged not illegal by the ICJ based on Security Council Resolution 1244 (1999) and the UNMIK (United Nations Mission in Kosovo) regulations promulgating the Constitutional Framework for Provisional Self-Government.

Russia did not even abstain during the vote for resolution 1244. It's interesting to draw some contrast between Resolution 1244 and a few other ones that expressly prohibited secession; these arguments were brought up by the pro-independence advocates, cf. Goodwin (2007):

  • in Resolution 787, on the possibility of secession of Republika Srpska within Bosnia-Herzegovina, the Security Council expressly affirmed that it would not accept 'any entities unilaterally declared'.
  • in Resolution 1251: 'a Cyprus settlement must be based on a State of Cyprus with a single sovereignty international personality and a single citizenship'
  • in Resolution 1225 and in Resolution 1255, the Council expressly called for a 'settlement on the political status of Abkhazia within the State of Georgia.'

So clearly 1244 not having such a prohibition left the door open… which was eventually used. From the press-release of ICJ, the lack of specific prohibition in 1244 did matter:

The Court further found that previous condemnations by the Security Council of unilateral declarations of independence had to be seen in their specific context noting that the illegal character of those declarations stemmed from the direct connection with the unlawful use of force or other serious violations of international norms of jus cogens character. However, the Security Council has never taken this position with respect to Kosovo. Further, the Court reasoned that the exceptional character of those resolutions containing a condemnation of a declaration of independence confirmed the absence of a general prohibition against unilateral declarations of independence under international law.

So my question is: to what can we attribute Russia's support for a resolution that (as subsequent events proved) enabled Kosovo's unilateral declaration of independence… keeping in mind that Russia still does not recognize Kosovo's independence, although they have made reference to the event in justifying some of their own (unilateral) actions, in Crimea in particular.


I think a partial answer can be deduced from Russia's (2009) written statement to the ICJ proceedings on the Kosovo declaration of independence. In support of their view that 1244 implicitly prohibited a unilateral declaration of independence, Russia's statement recalled that Resolution 1244 reaffirmed the territorial integrity of Serbia:

"commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region, as set out in the Helsinki Final Act and annex 2"

The majority of ICJ didn't see this guarantee as having any impact on secession (by part of the country):

  1. Several participants in the proceedings before the Court have contended that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity. The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” In General Assembly resolution 2625 (XXV), entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations”, which reflects customary international law (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103, paras. 191-193), the General Assembly reiterated “[t]he principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State”. This resolution then enumerated various obligations incumbent upon States to refrain from violating the territorial integrity of other sovereign States. In the same vein, the Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975 (the Helsinki Conference) stipulated that “[t]he participating States will respect the territorial integrity of each of the participating States” (Art. IV). Thus, the scope of the principle of territorial integrity is confined to the sphere of relations between States.

(My emphasis.)

Also Russia's position in their statement to the ICJ was that they understood/thought that the final status of Kosovo (cf. 1244) was not going to be decided unilaterally:

Paragraphs 11 (a) and (c) of Resolution 1244 mention that self-government and autonomy for Kosovo are to be ensured "pending a final/political settlement". [… ] Yet a "settlement", both in its plain meaning and with specific reference to law and international relations, usually is something agreed upon by parties or decided by a competent authority. It is defined as "an agreement composing differences" or else as "an agreement ending a dispute or lawsuit". This understanding is particularly relevant in the context of the notion of "pacific settlement of disputes", where negotiation is considered as the first option to be pursued by the parties (Article 33 of the UN Charter). Moreover, in the case at hand, a clear reference to a negotiated settlement is contained in Resolution 1244 itself: "Negotiations between the parties for a settlement should not delay or disrupt the establishment of democratic self-governing institutions" (Annex 2, paragraph 8).

Apart from negotiation, Article 33 of the Charter lists, among the means of settlement of disputes, "enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements". All these means are characterized by a common feature: they envisage the involvement of a third party, duly authorized either to facilitate the negotiations or to decide on the matter. What this list excludes is a unilateral decision by one of the parties to the dispute. Therefore, even if one admits that Resolution 1244 does not exclude independence of Kosovo as a form of the "final settlement", such settlement was to be negotiated between the parties or, at the very least, to be decided upon by a body competent under international law to do so.

(Again my emphasis.)

And it goes on to detail (on several pages) why Russia thought the Security Council was the competent body for that determination, based e.g. on the trajectory of the Ahtisaari Plan. The ICJ rejected this view too, again based on the lack of specific clauses in 1244:

  1. [… ] In this regard the Court notes that contemporaneous practice of the Security Council shows that in situations where the Security Council has decided to establish restrictive conditions for the permanent status of a territory, those conditions are specified in the relevant resolution… For example, although the factual circumstances differed from the situation in Kosovo, only 19 days after the adoption of resolution 1244 (1999), the Security Council, in its resolution 1251 of 29 June 1999, reaffirmed its position that a “Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded” (para. 11). The Security Council thus set out the specific conditions relating to the permanent status of Cyprus. By contrast, under the terms of resolution 1244 (1999) the Security Council did not reserve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.

Still that doesn't really answer whether Russian diplomats, lawyers, and leaders really thought in 1999 they had obtain enough protection in Resolution 1244 against a unilateral declaration of independence of Kosovo. Maybe their Russian successors of 2009 just tried to salvage the situation (to their advantage) as best they could, given the cards they had been dealt.


Kosovo's future among the free nations

On 22 July, the International Court of Justice (ICJ) recognized what Kosovars have known for two years - that Kosovo is a sovereign, independent state.

The Court's 10-four majority was decisive, and its conclusions were clear: the adoption of our 17 February 2008 declaration did not violate international law it did not violate United Nations Security Council Resolution (UNSCR) 1244 and, it did not violate the constitutional framework that had been established by the United Nations to guide the interim stabilisation of Kosovo.


Far-off target

On the other side, backing Serbia, has been a mixture of unlikely bedfellows. Venezuela and Iran often take up positions opposed to the US. But Cyprus, Romania, Spain and China are on the same page through self-interest - concern that a precedent could be set for separatist regions in their own backyards if a green light is given to self determination. So they have argued in favour of a country's right to protect territorial integrity and resist breakaway regions who threaten unilaterally to challenge their borders.

Russia, one of Serbia's most loyal supporters, has been caught uneasily in the middle. The precedent set by Kosovo helped justify Moscow's hasty recognition of South Ossetia and Abkhazia after their break away from Georgia. But Russia has not been so anxious to contemplate the precedent applied elsewhere in within its borders, for example in Chechnya.

So in the wake of the ICJ ruling, President Fatmir Sejdiu was swift to declare his hope that it removed "all doubts" about Kosovo's independent status. He appealed to countries across the world to swell the ranks of the 69 countries who have so far recognised it, especially the five EU countries still not signed up: Spain, Greece, Cyprus, Slovakia and Romania.

But will they recognise Kosovo? And even if they do, by the reckoning of one UN diplomat, the backing of at least 100 nations around the world is needed for Kosovo's full international statehood to be established. Still a far-off target.


Crimea, Kosovo, Hobgoblins and Hypocrisy

One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity. On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

The appeal of this critique is undeniable, even if it is ultimately contradictory and self-defeating. How can he after all say this while continuing to refuse to recognize Kosovo’s independence? His misinterpretations of the Court’s advisory opinion are obvious – the Court never said that Kosovo’s separation from Serbia was legitimate, or that Kosovo is a state under international law. All it said was that the declaration of independence itself, as a piece of paper, did not violate international law, while adding that a declaration could do so if it was the result of an unlawful use of force by a third state (see, e.g., Crimea). The Court of course said absolutely nothing about self-determination, and rightly so.

And while Putin is happy to quote from the US written statement in the Kosovo proceedings (with which everyone most certainly did not agree, as he put it), he fails to quote from Russia’s own, which was very much ‘crystal clear.’ Russia was in fact the only state in the pro-Serbia camp in the advisory proceedings, and indeed the only state among the UNSC P-5, to argue that there is a right to remedial secession for peoples denied their right to internal self-determination, but one subject to exceptionally strict conditions. For example, Russia’s written statement, on p. 31, para. 88, says that:

[T]he Russian Federation is of the view that the primary purpose of the “safeguard clause” [of the Friendly Relations Declaration] is to serve as a guarantee of territorial integrity of States. It is also true that the clause may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.

The written statement adds at pp. 39-40 that:

outside the colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people.

Russia thus claimed that on the facts Kosovo did not satisfy these stringent criteria even in 1999, let alone in 2008 when it declared independence. Similarly, in the oral proceedings before the Court (CR 2009/30), the head of the legal department of the Russian Ministry of Foreign Affairs argued that the population of Kosovo did not constitute a people entitled to self-determination (p. 42, para. 9) that even if they were entitled to self-determination they could exercise that right within Serbia (p. 44, paras. 23-24) and that the principle of territorial integrity stems from peremptory norms of international law which are not binding only upon states (p. 46, para. 34).

If Kosovo, with all the systematic repression inflicted upon its population by Serbian authorities, could not satisfy these criteria, then I fail to see how Crimea ever could. Even accepting at their fullest Russia’s descriptions of extremists influencing the Kiev government, and even assuming that the population of Crimea constitutes a ‘people,’ that people was on no reasonable appraisal of the facts ‘continuously subjected to most severe forms of oppression that endangers [their] very existence.’

Governmental hypocrisy is of course nothing new – foolish consistency has ever been the hobgoblin of little minds. But the sheer brazenness of it, again on the part of both Russia and the West, is simply breathtaking. (And I won’t even begin to describe for an international audience how, in a particularly perverse example of doublethink, most of the population of Serbia today supports Russia’s actions in Ukraine, Kosovo be damned, just to show the Westerners what a total bunch of hypocrites they are).

And to wrap up, readers might be interested in a chapter I’ve just posted on SSRN on arguing the Kosovo case before the ICJ, which is forthcoming in an book on the case I’m editing together with Sir Michael Wood, entitled The Law and Politics of the Kosovo Advisory Opinion, which will be out with OUP later this year. The chapter was finalized before Crimea, but it looks, for example, at why many of Kosovo’s most powerful allies chose not to argue the case in terms of self-determination. The abstract is below, and comments are as ever most welcome:

This chapter looks at how the Kosovo case was argued by the parties appearing before the International Court of Justice in the various stages of its advisory proceedings. My point in doing so is not to establish whether particular arguments were right or wrong, or to re-argue the case in any way. Rather, I am interested in the discursive shift that transpired once the issue of Kosovo’s independence (at least partly) moved from the political arena to the judicial one. In other words, I want to look at how those justifying or opposing Kosovo’s independence had to adjust their arguments, or develop new ones, once the case came before the Court.

The highly formalized setting of the ICJ required significant adjustments to arguments made either in support or in opposition to independence, as lawyers took over from the politicians and tried make their points in a language that the Court could not only understand, but could also adopt as its own when writing its opinion. Some previously deployed lines of argument thus had to be dropped, others transformed, and yet others invented purely for the sake of the advisory proceedings. In other words, arguments that were persuasive in one context did not necessarily work in the other. For instance, the frequent assertion of the supporters of Kosovo’s independence that Kosovo was a special or sui generis case had to be reframed before the ICJ in order to be truly persuasive. Similarly, whereas the interplay between two broad legal and political principles – the territorial integrity of states and the self-determination of peoples – was considered by many as being crucial for assessing Kosovo’s claim to independence before the advisory proceedings were initiated, these principles became increasingly marginalized as the proceedings progressed.

My goal in this chapter, therefore, is to observe the evolution of the argumentative strategies of the parties appearing before the Court, and to establish the driving factors for this evolution. In doing so I will mostly focus on the written and oral pleadings before the Court, their structure and the nature of the arguments made the advisory opinion itself will generally be of interest to me only to the extent that it reflects the pleadings and the opposing litigation strategies. What concerns me here, in other words, is not what the Court decided, but how and why it got there.

Related

Categories

Leave a Comment

Comments for this post are closed

Comments

Marko, I completely agree - we find ourselves peering into an almost Alice in Wonderland world where a knowledge of history is considered to be a bad thing!

Political reality will, of course, determine where the events go from here, and it remains uncertain whether law is framing the debate or simply playing catch up, or just apologising for them.

I think for me one of the most notable phrases in your piece is "sheer brazenness" - but it is a brazenness emboldened by the previous actions by others that were perhaps done out of best interests (and sometimes out of self-interest), but which ultimately have tempered the international community's ability to hold those States that most "brazenly" violate the law to account.

Dear Marko
I am not sure that there is sufficient evidence to claim. in a particularly perverse example of doublethink, most of the population of Serbia today supports Russia’s actions in Ukraine. just to show the Westerners what a total bunch of hypocrites they are). And in particular that "they are a total bunch of hypocrites" is really too far. I don't know what your source of information for this Serbian "support" is and I would love to see it. All political parties have actually been conspicuously silent about the situation. Maybe greater effort is needed to legally distinguish the two situations than to make this kind conclusion.

Russia is not being hypocritical. After it lost its case with regard to Kosovo (at least as a matter of fact), why should it stick to its previous legal position? For Russia, the law has evolved and it is now acting accordingly. As for Russia's continuing refusal to recognize Kosovo's independence, I suppose it has every right to do so and so for whatever reason.

Maria Zhurnalova-Juppunov says

Dear Marko,
I could not agree more. Despite all the talk about the uniqueness of the Kosovo case it will be there to haunt the Western countries and to provide legal justification for cessionist movements within their own borders, as well. As for Russia, its position is self-serving as well. Legal arguments are just twisted and turned to provide a nice veneer for political ends.

Excellent piece, Marko, and I think you raised a hugely important point in Russia's argument that too many commentators are ignoring or not considering enough with regard to the Crimea problem - namely, what constitutes a 'people'? If Russian considers itself under the mandate to protect all Russian speakers in the world and to allow them to exercise their right to self-determination, then they have a peculiar definition of 'people'. Then again, there may be no need to bring the behaviour of Western countries with Kosovo on the table to find hypocrisy in international law: one may just look at, well, Russia.

Thanks for this post together with some incisive comments.

I do however, for the reasons below, have doubts about your comment to the effect that "whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244".

Security Council Resolution 1160 of 31 March 1999 condemned this “use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation Army.” Nevertheless, it went on to recognize that:

“[T]he principles for a solution of [this] Kosovo problem should be based on the territorial integrity of the Federal Republic of Yugoslavia and should be in accordance with OSCE standards, including those set out in the Helsinki Final Act of the Conference on Security and Cooperation in Europe of 1975, and the Charter of the United Nations, and that such a solution must also take into account the rights of the Kosovar Albanians and all who live in Kosovo.”

Accordingly, the clear and unambiguous terms set out within SC Resolution 1160 respected, ab initio, the constitutional framework set out in the above-mentioned successive Yugoslav constitutions and moreover, accord with the subsequent 2003 and 2006 Constitutional Charters of Serbia and Montenegro. This refutes Noel Malcolm’s assumption that Kosovo “remained part of some sort of Yugoslav state until June 2006” - an unfounded claim which thus can not be used in the attempt to legitimize this unilateral declaration.

SC Resolution 1160 instigated the process of establishing an international civil and security presence in Kosovo in the attempt to restore peace and security. In doing so, it recognized Serbia’s enduring sovereignty over Kosovo. As such, it went no further than to express support for an “enhanced status” for Kosovo consisting of “a substantially greater degree of autonomy and meaningful self-administration”. These principles were echoed within the Concluding Statement of the Chairman at the meeting of the G-8 Foreign Ministers made on 6 May 1999 as well as The Paper presented to the FRY in Belgrade on 2 June 1999, both of which called for the following:

“[a] political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia…”

Insomuch that Serbia accepted this demand is evidenced in document S/1999/649, circulated at the Security Council on 7 June 1999, stating that “[t]he Government of the Federal Republic of Yugoslavia and the Assembly of the Republic of Serbia accepted [the above-mentioned agreement on principles dated 6 May and 2 June 1999] on 3 June 1999.” Moreover, as indicated in a speech made by the former FRY President Slobodan Milosevic on 9 June 1999 (the day prior to the adoption of SC Resolution 1244), the FRY’s consent to this arrangement was based upon the explicit understanding that Serbia was to retain its sovereignty over Kosovo:

“We have not given up Kosovo. The Group of Eight most developed countries of the world and the United Nations guarantee the sovereignty and territorial integrity of our country. This guarantee is also contained in the draft resolution. The Belgrade agreement has closed the open issues of the possible independence of Kosovo at the time prior to the aggression. The territorial entirety of our country cannot be threatened . the political process, which will be based on the principles which stem from previously conducted discussions [is] also equally based on the sovereignty and territorial integrity of our country. This means that only autonomy, and nothing else outside that, can be mentioned in this political process.”

In accordance with these international agreements and understandings, on 10 June 1999, the Security Council passed SC Resolution 1244 which warranted the territory of Kosovo being placed under the auspices of the United Nations. Instrumental to this “political process” were two measures overseen by the United Nations: firstly, “the Federal Republic of Yugoslavia… begin and complete a complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable, with which the deployment of the international security presence in Kosovo will be synchronized” secondly, the establishment of “an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,”. Albeit it being encumbered with Serbia’s recognised reversionary interest(to borrow some phrases from English land law!), it is on this basis that the United Nations Mission in Kosovo had exclusive yet transitional control of Kosovo.

Indeed, SC Resolution 1244 explicitly reiterates the agreed formulations of “substantial autonomy” and “meaningful self-administration” for Kosovo. Such formulations, combined with the consistent omission of any reference to the principle of self-determination, conclusively indicates that there is no legal basis whatsoever for the type of independent statehood that has been unilaterally declared and recognized. This lends credence to the claims that this unilateral declaration and recognition thereof violates both international law and Serbia’s sovereignty. Moreover, in making the unilateral declaration of independence and adopting The Constitution of the Republic of Kosovo, Kosovo’s Assembly has acted ultra vires. In case there is any doubt, the UNMIK ‘Constitutional Framework for Provisional Self-Government’ confirms that Kosovo’s “Provisional Institutions of Self-Government” had no powers to act in the foregoing ways. To do so is to be in breach of the obligation to in no way “affect or diminish the ultimate authority of the SRSG [Special Representative of the Secretary General] for the implementation of UNSCR 1244(1999)”. In this respect, as Chapter 8 Para. 2 of the UNMIK ‘Constitutional Framework’ reserves powers to the SRSG in the domains of defence, justice, legal affairs and foreign affairs, to name just a few, it is suggested that the provisions within The Constitution of the Republic of Kosovo such as Article 2, Article 65 paragraph (12), Article 84 paragraphs (7), (10), (12) and (15) – (25), Article 93, Article 131, Article 151 are contradictory, unlawful and untenable.

In view of these limitations, for this to be any other way remains contingent upon “the determination of Kosovo's future status through a process at an appropriate future stage” which adheres to the “general principles on a political solution to the Kosovo crisis” as stated in Annexes 1 & 2 of SC Resolution 1244. Should it be argued that the provision within the ‘Constitutional Framework’ to “take full account of all relevant factors including the will of the people” provides a window of opportunity for a referendum on the issue of Kosovo’s independent statehood, it is worth remembering that SC Resolution 1244 has precedence over this mere ‘Framework’.

Furthermore, this provision is expressed in a non-imperative and non-binding manner and it makes neither express nor implied reference to the applicability of the right of self-determination within the requisite prospective mechanism for final status. Thus, we have found ourselves in a situation that appears to have gone beyond its clear and unambiguous limits of SC Resolution 1244.

Who was it who stated that “only autonomy, and nothing else outside that, can be mentioned in this political process.”

UNSC resolution 1244 is clear: Kosovo is and will remain part of Serbia. unless there is a mutual agreed deal. Let's not forget the US tried to change this resolution 5 times. US never brought it to a vote as US knew Russia would veto.

OK, and then: next try. US says that UNSC 1244 is 'not relevant'.

As one Dutch newspaper wrote in 2008: "Well, of course UNSC 1244 says that Kosovo will remain part of Serbia - unless there is this mutual agreed deal. But this only had to be included in the resolution as otherwise Russia would never agree."

Please read again! So we, the West, strike a deal with others (Serbia, Russia, rest of the world). But as soon as the resolution is there we choose to ignore certain parts we do not like (maybe did not like from the beginning).

Am I alone in perceiving that there is a huge gap between what academics think about Kosovo and Crimea and how ordinary people (I am reluctant to use "common sense") see the episodes or any distinction between them? Whilst the majority of ordinary people (just look at readers' comments in thousands in all major newspapers) exhibit a significant level of understanding and sympathy with the Crimean Russians, and I mean in the context of legality, the majority of academics adopt a totally opposite view condemning the referendum! And thinking about the reasons for the discrepancy I am coming to conclusions that every single one I strongly dislike! I hope I don't even have to list them!

@Miroslav Baros: my feeling is that academics are focusing more on the behaviour - in the legal sense of the term - of Russia on one hand and EU/US on the other (at least that's what I'm doing), and trying to take into account the fact that Putin has made very clear - between the lines - that he's not leaving Crimea one way or the other. As sympathetic as one can be to the Crimean Russian, that's simply not the right way to obtain secession. How seriously should we take a referendum in which one choice is "Are you in favour of the reunification of Crimea with Russia as a subject of the Russian Federation" and the other is "Are you in favour of restoring the 1992 Constitution and the status of Crimea as a part of Ukraine"?

Dear Paolo
This just confirms my perception unfortunately. And on the subject are you implying that the Crimean Russians voted for independence only because of Russian forces (who are there legally by the way)? And that otherwise they would love to stay with Ukraine whose new leadership is illegitimate and who made it clear that Russians would be second class citizens to say the least? Remember Aristide and the Frank's right to demicratic governance"? And this is exactly what I mean by the gap between "us" and "ordinary people". I personally refuse for example to even start analysing the "legality" of drone strikes because any serious thinking and a remote prospect of declaring it legal trivialises the unspeakable suffering of those exposed to such horror on daily basis. So I guess I hate my job and profession.

I agree with you that the people of Crimea would have voted to become part of Russia any day of any given week. I'm still concerned though about all the circumstances surrounding the referendum, including (should I say especially?) the legality of the presence of Russian troops in the area. In the shoes of "ordinary people" I should probably ask myself many questions that will never be answered (were the US really behind the riots in Kiev? What are the real reasons behind Putin's intervention? and so on) but as an academic I work with what I have. Not to trivialise the feelings of the people of Crimea, but couldn't the referendum have been drafted differently? Couldn't they raise the issue of going (back) to Russia any other time? What's going to happen now to the Ukranian economy, since they've just lost Crimea and possibly have their exports and trade policy affected irreversibly?

Kosovo is also inapt because NATO authorized "regional action" which is permissible under Article 52 of the U.N. Charter as long as the S.C. remains veto-deadlocked and unable to control "regional action" or to authorize or limit S.C. "enforcement action." see http://ssrn.com/abstract=2272291 [portion on regional action by OAS and by NATO, etc.] and http://ssrn.com/abstract=1991432 [same]

Marko Milanovic

Dr Marko Milanovic is Professor of Public International Law at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial&hellip

Leave a Comment

Comments for this post are closed

Comments

Marko, I completely agree - we find ourselves peering into an almost Alice in Wonderland world where a knowledge of history is considered to be a bad thing!

Political reality will, of course, determine where the events go from here, and it remains uncertain whether law is framing the debate or simply playing catch up, or just apologising for them.

I think for me one of the most notable phrases in your piece is "sheer brazenness" - but it is a brazenness emboldened by the previous actions by others that were perhaps done out of best interests (and sometimes out of self-interest), but which ultimately have tempered the international community's ability to hold those States that most "brazenly" violate the law to account.

Dear Marko
I am not sure that there is sufficient evidence to claim. in a particularly perverse example of doublethink, most of the population of Serbia today supports Russia’s actions in Ukraine. just to show the Westerners what a total bunch of hypocrites they are). And in particular that "they are a total bunch of hypocrites" is really too far. I don't know what your source of information for this Serbian "support" is and I would love to see it. All political parties have actually been conspicuously silent about the situation. Maybe greater effort is needed to legally distinguish the two situations than to make this kind conclusion.

Russia is not being hypocritical. After it lost its case with regard to Kosovo (at least as a matter of fact), why should it stick to its previous legal position? For Russia, the law has evolved and it is now acting accordingly. As for Russia's continuing refusal to recognize Kosovo's independence, I suppose it has every right to do so and so for whatever reason.

Maria Zhurnalova-Juppunov says

Dear Marko,
I could not agree more. Despite all the talk about the uniqueness of the Kosovo case it will be there to haunt the Western countries and to provide legal justification for cessionist movements within their own borders, as well. As for Russia, its position is self-serving as well. Legal arguments are just twisted and turned to provide a nice veneer for political ends.

Excellent piece, Marko, and I think you raised a hugely important point in Russia's argument that too many commentators are ignoring or not considering enough with regard to the Crimea problem - namely, what constitutes a 'people'? If Russian considers itself under the mandate to protect all Russian speakers in the world and to allow them to exercise their right to self-determination, then they have a peculiar definition of 'people'. Then again, there may be no need to bring the behaviour of Western countries with Kosovo on the table to find hypocrisy in international law: one may just look at, well, Russia.

Thanks for this post together with some incisive comments.

I do however, for the reasons below, have doubts about your comment to the effect that "whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244".

Security Council Resolution 1160 of 31 March 1999 condemned this “use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation Army.” Nevertheless, it went on to recognize that:

“[T]he principles for a solution of [this] Kosovo problem should be based on the territorial integrity of the Federal Republic of Yugoslavia and should be in accordance with OSCE standards, including those set out in the Helsinki Final Act of the Conference on Security and Cooperation in Europe of 1975, and the Charter of the United Nations, and that such a solution must also take into account the rights of the Kosovar Albanians and all who live in Kosovo.”

Accordingly, the clear and unambiguous terms set out within SC Resolution 1160 respected, ab initio, the constitutional framework set out in the above-mentioned successive Yugoslav constitutions and moreover, accord with the subsequent 2003 and 2006 Constitutional Charters of Serbia and Montenegro. This refutes Noel Malcolm’s assumption that Kosovo “remained part of some sort of Yugoslav state until June 2006” - an unfounded claim which thus can not be used in the attempt to legitimize this unilateral declaration.

SC Resolution 1160 instigated the process of establishing an international civil and security presence in Kosovo in the attempt to restore peace and security. In doing so, it recognized Serbia’s enduring sovereignty over Kosovo. As such, it went no further than to express support for an “enhanced status” for Kosovo consisting of “a substantially greater degree of autonomy and meaningful self-administration”. These principles were echoed within the Concluding Statement of the Chairman at the meeting of the G-8 Foreign Ministers made on 6 May 1999 as well as The Paper presented to the FRY in Belgrade on 2 June 1999, both of which called for the following:

“[a] political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia…”

Insomuch that Serbia accepted this demand is evidenced in document S/1999/649, circulated at the Security Council on 7 June 1999, stating that “[t]he Government of the Federal Republic of Yugoslavia and the Assembly of the Republic of Serbia accepted [the above-mentioned agreement on principles dated 6 May and 2 June 1999] on 3 June 1999.” Moreover, as indicated in a speech made by the former FRY President Slobodan Milosevic on 9 June 1999 (the day prior to the adoption of SC Resolution 1244), the FRY’s consent to this arrangement was based upon the explicit understanding that Serbia was to retain its sovereignty over Kosovo:

“We have not given up Kosovo. The Group of Eight most developed countries of the world and the United Nations guarantee the sovereignty and territorial integrity of our country. This guarantee is also contained in the draft resolution. The Belgrade agreement has closed the open issues of the possible independence of Kosovo at the time prior to the aggression. The territorial entirety of our country cannot be threatened . the political process, which will be based on the principles which stem from previously conducted discussions [is] also equally based on the sovereignty and territorial integrity of our country. This means that only autonomy, and nothing else outside that, can be mentioned in this political process.”

In accordance with these international agreements and understandings, on 10 June 1999, the Security Council passed SC Resolution 1244 which warranted the territory of Kosovo being placed under the auspices of the United Nations. Instrumental to this “political process” were two measures overseen by the United Nations: firstly, “the Federal Republic of Yugoslavia… begin and complete a complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable, with which the deployment of the international security presence in Kosovo will be synchronized” secondly, the establishment of “an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,”. Albeit it being encumbered with Serbia’s recognised reversionary interest(to borrow some phrases from English land law!), it is on this basis that the United Nations Mission in Kosovo had exclusive yet transitional control of Kosovo.

Indeed, SC Resolution 1244 explicitly reiterates the agreed formulations of “substantial autonomy” and “meaningful self-administration” for Kosovo. Such formulations, combined with the consistent omission of any reference to the principle of self-determination, conclusively indicates that there is no legal basis whatsoever for the type of independent statehood that has been unilaterally declared and recognized. This lends credence to the claims that this unilateral declaration and recognition thereof violates both international law and Serbia’s sovereignty. Moreover, in making the unilateral declaration of independence and adopting The Constitution of the Republic of Kosovo, Kosovo’s Assembly has acted ultra vires. In case there is any doubt, the UNMIK ‘Constitutional Framework for Provisional Self-Government’ confirms that Kosovo’s “Provisional Institutions of Self-Government” had no powers to act in the foregoing ways. To do so is to be in breach of the obligation to in no way “affect or diminish the ultimate authority of the SRSG [Special Representative of the Secretary General] for the implementation of UNSCR 1244(1999)”. In this respect, as Chapter 8 Para. 2 of the UNMIK ‘Constitutional Framework’ reserves powers to the SRSG in the domains of defence, justice, legal affairs and foreign affairs, to name just a few, it is suggested that the provisions within The Constitution of the Republic of Kosovo such as Article 2, Article 65 paragraph (12), Article 84 paragraphs (7), (10), (12) and (15) – (25), Article 93, Article 131, Article 151 are contradictory, unlawful and untenable.

In view of these limitations, for this to be any other way remains contingent upon “the determination of Kosovo's future status through a process at an appropriate future stage” which adheres to the “general principles on a political solution to the Kosovo crisis” as stated in Annexes 1 & 2 of SC Resolution 1244. Should it be argued that the provision within the ‘Constitutional Framework’ to “take full account of all relevant factors including the will of the people” provides a window of opportunity for a referendum on the issue of Kosovo’s independent statehood, it is worth remembering that SC Resolution 1244 has precedence over this mere ‘Framework’.

Furthermore, this provision is expressed in a non-imperative and non-binding manner and it makes neither express nor implied reference to the applicability of the right of self-determination within the requisite prospective mechanism for final status. Thus, we have found ourselves in a situation that appears to have gone beyond its clear and unambiguous limits of SC Resolution 1244.

Who was it who stated that “only autonomy, and nothing else outside that, can be mentioned in this political process.”

UNSC resolution 1244 is clear: Kosovo is and will remain part of Serbia. unless there is a mutual agreed deal. Let's not forget the US tried to change this resolution 5 times. US never brought it to a vote as US knew Russia would veto.

OK, and then: next try. US says that UNSC 1244 is 'not relevant'.

As one Dutch newspaper wrote in 2008: "Well, of course UNSC 1244 says that Kosovo will remain part of Serbia - unless there is this mutual agreed deal. But this only had to be included in the resolution as otherwise Russia would never agree."

Please read again! So we, the West, strike a deal with others (Serbia, Russia, rest of the world). But as soon as the resolution is there we choose to ignore certain parts we do not like (maybe did not like from the beginning).

Am I alone in perceiving that there is a huge gap between what academics think about Kosovo and Crimea and how ordinary people (I am reluctant to use "common sense") see the episodes or any distinction between them? Whilst the majority of ordinary people (just look at readers' comments in thousands in all major newspapers) exhibit a significant level of understanding and sympathy with the Crimean Russians, and I mean in the context of legality, the majority of academics adopt a totally opposite view condemning the referendum! And thinking about the reasons for the discrepancy I am coming to conclusions that every single one I strongly dislike! I hope I don't even have to list them!

@Miroslav Baros: my feeling is that academics are focusing more on the behaviour - in the legal sense of the term - of Russia on one hand and EU/US on the other (at least that's what I'm doing), and trying to take into account the fact that Putin has made very clear - between the lines - that he's not leaving Crimea one way or the other. As sympathetic as one can be to the Crimean Russian, that's simply not the right way to obtain secession. How seriously should we take a referendum in which one choice is "Are you in favour of the reunification of Crimea with Russia as a subject of the Russian Federation" and the other is "Are you in favour of restoring the 1992 Constitution and the status of Crimea as a part of Ukraine"?

Dear Paolo
This just confirms my perception unfortunately. And on the subject are you implying that the Crimean Russians voted for independence only because of Russian forces (who are there legally by the way)? And that otherwise they would love to stay with Ukraine whose new leadership is illegitimate and who made it clear that Russians would be second class citizens to say the least? Remember Aristide and the Frank's right to demicratic governance"? And this is exactly what I mean by the gap between "us" and "ordinary people". I personally refuse for example to even start analysing the "legality" of drone strikes because any serious thinking and a remote prospect of declaring it legal trivialises the unspeakable suffering of those exposed to such horror on daily basis. So I guess I hate my job and profession.

I agree with you that the people of Crimea would have voted to become part of Russia any day of any given week. I'm still concerned though about all the circumstances surrounding the referendum, including (should I say especially?) the legality of the presence of Russian troops in the area. In the shoes of "ordinary people" I should probably ask myself many questions that will never be answered (were the US really behind the riots in Kiev? What are the real reasons behind Putin's intervention? and so on) but as an academic I work with what I have. Not to trivialise the feelings of the people of Crimea, but couldn't the referendum have been drafted differently? Couldn't they raise the issue of going (back) to Russia any other time? What's going to happen now to the Ukranian economy, since they've just lost Crimea and possibly have their exports and trade policy affected irreversibly?


Can Russia's Quest for the New International Order Succeed?

A genesis and development of the conflict in Ukraine demonstrated fragility of the international security system and its inability to guard sovereignty of the smaller or weaker nations. By creating and then manipulating conflicts, Russia is gaining leverage over the decision making on political and economic development, governance issues, and the external alliances of those countries. By challenging sovereignty of smaller states, and forcibly changing their borders, Russia is challenging existing international order and the basic principles of Helsinki Final Act on Security and Co-operation in Europe of 1975, to which the Soviet Union, and its successor state, Russian Federation, are signatories. For the interests of global stability, it is a priority to bring Russia back to the framework of the Organization for Security and Co-Operation in Europe (OSCE) without any concessions on principles of sovereignty for all OSCE member states.


To Kosovans, Blair is a true hero

"The king is dead, long live the king" is an expression about monarchy, but it rings true in modern democracy. Some in Britain appear to have forgotten that Tony Blair led their country on the world stage for 10 years and that moreover, that they gave him a large mandate to do so on three occasions. As the prime minister of Europe's youngest country, I have been fortunate in feeling the UK's unshaken support under the governments that have succeeded Blair, both Gordon Brown and David Cameron. But, on a personal basis, I cannot help feeling that Blair's own extraordinary energy and considerable achievements are now being undervalued at home.

Given the tremendous role that Blair played in helping my country forge its independence, I hope his book will not only bring a personal perspective to some important global events but remind people why they admired the man in the first place. Political power is not really aggrandising at all. There is something deeply humbling about public service and the trust that a nation places in the individuals it charges to lead. Blair knows this. Meanwhile, as Kosovo seeks to consolidate its position on the European stage, Tony Blair's conduct and commitment is a powerful example to me personally – and all of us in Kosovo owe him and British people a considerable debt.

Although we declared independence two years ago, it was only last month (22 July) that the international court of justice finally ratified Kosovo as a sovereign, independent state. The decisive 10 to four majority concluded that our declaration did not violate international law or UN security council resolution 1244, nor did it compromise the constitutional framework established by the UN to guide the interim stabilisation of Kosovo. Crucially, the court reaffirmed Kosovo's place in the international community, something which 69 countries have already recognised.

Since we need more recognitions to achieve our seat at the UN general assembly, I am calling on those states that have not yet done so to recognise Kosovo. I am grateful to the current British government for its constructive efforts in allowing Kosovo to take its place among other nations. In addition, Tony Blair is making similar representations to the same countries on our behalf.

Kosovans did not arrive at the decision to declare independence lightly, or by default through political vacuum. Indeed, as the ICJ acknowledged, the circumstances that led to Kosovo's declaration of independence were unique. The narrowness of the court's ruling on this issue should reassure any country reluctant to recognise Kosovo to date. Our declaration did not set a precedent, and any suggestions that the court's ruling opens a Pandora's box are wrong. Countries still opposing our sovereignty, typically because of secessionist concerns within their own borders, should accept this.

Today's Serbian government has a different complexion from the one that terrorised my people 11 years ago. All the same, some influential elements within it are still trying to pick holes in the ICJ's decision, hoping to open another UN general assembly resolution to contest Kosovo's status. The legal question about Kosovo's independence was asked and the court's answer was unambiguous. The Serbian government may not have liked the answer it received from the court, but if it maintains aspirations of its own to be part of the greater European family, it must surely accept the rule of law.

Frankly, Kosovars see the ruling as an opportunity to put the past behind us and move forward with all the countries of the Balkans, including Serbia, towards true Euro-Atlantic integration. My country looks forward to working with Serbia and discussing practical issues that would improve the lives of all of our citizens. We are neighbours and we face common challenges. Our police forces must work together to combat the ravages of international crime. Our two countries need to co-operate on practical issues such as energy, telecommunications, and education. We have a common interest in working together to identify the fate of missing persons – both Albanian and Serb – from the sad period of the war we both experienced.

Our Serbian neighbours may not recognise Kosovo's independence just yet, but co-operation between the two independent states is inevitable. Meanwhile Kosovo will continue to build on the firm foundations it has laid since 2008. We will complete implementation of the Ahtisaari plan – now enshrined in our new constitution – with its far-reaching guarantees for a secular society that protects the rights of members of all ethnic groups in Kosovo, including Serbs. We will continue to strengthen our democratic institutions and we will take the decisions necessary to promote long-term, private sector-led economic growth.

There is much to do, but Kosovo is already open for investment, business and tourism. As Tony Blair declared in his speech to our parliament in July: "There is a dream for you now. That one day, Kosovo takes its place as a member of the European Union, a proud independent state, not just directing its own affairs, but playing its part in those of the largest political and commercial union in the world."

Yes, Kosovo will continue the reforms necessary to secure its rightful place in the UN, in Nato and the EU, and we are delighted that Mr Blair continues to champion our cause. His role in Kosovo's history will be recognised as an important example in a great legacy. Kosovo has honoured him with the Golden Medal of Freedom, and Kosovans will forever remember him as one of their heroes.


Kosovo's Disputed Statehood

For all the ways that Kosovo's declaration of independence on Feb. 17, 2008, was a seminal moment, it changed little. To be sure, it marked the beginning of a fundamentally new phase in Kosovo's political life and led to material as well as symbolic changes in its international status. Many powerful states recognized Kosovo as independent, and its altered international standing quickly allowed it to reach new heights of political autonomy. Yet many of the underlying political challenges and divisions that made Kosovo such a political flashpoint in Europe in the first place remained in place.

Its early post-independence years have been marked by a familiar mix of contentious politics involving international disagreement and intercommunal stalemate. The Serb and Albanian communities within Kosovo retain the irreconcilable views and mutual distrust that have characterized community relations in Kosovo for years, and deep divisions within the international community over the issue of recognition have hampered outside efforts to resolve the dispute. With international actors at times pulling in opposite directions, the international community has been unable and unwilling to offer the kind of sustained and consistent pressure that might otherwise have altered the politics on the ground. The declaration of independence was a landmark moment, but neither the pronouncement itself nor the international endorsements that followed have resolved the fundamental political challenges remaining in this nascent state. .

enter your email address then choose one of the three options below.

Subscribe to World Politics Review and you'll receive instant access to 10,000+ articles in the World Politics Review Library, along with new comprehensive analysis every weekday . . . written by leading topic experts.

About World Politics Review

Read an overview of all that is included in our service.
Request an institutional free trial for your entire organization.


Albanian Federation and economy

The Albanian Federation in the process of its creation, as a model of prosperity can have the Federal Republic of Germany, merging within this positive experience the authentic elements of our state organization over the centuries. However, as a modern state, the Albanian Federation will be based on the principles of economics, based on its own tax revenues. On this basis, the Albanian Federation is transferred from a developing country to a modern developed country. The income of the modern developed state is based mainly on income tax and profit, while some states live, first of all, on income and rents, on the sale of mineral resources, especially oil and gas. This is why the distribution and breeding of the tax burden remains part of the components of each country’s domestic political strategies. As the Albanian Federation in its strategic objective, based on vital national interests, is committed to be part of Euro-Atlantic structures as a whole, in line with EU policies, it should also be committed to taking three of the basic issues, as follows:

1. A growing economy and prosperity is the basic interest of every state. Consequently, each state remains interested in attracting as many profitable economic enterprises as possible within its borders.

2. With the clear objective of creating the image of an attractive country for investment, the state builds the most attractive tax policies for serious investors, even moving towards a tax-free zone. In this regard, the objective of the tax policies of the Albanian Federation should be multinational corporations. With this card, Ireland has played for years as a peripheral country of the EU, but also other countries, supporting the so-called “Free Economic Zones”, which provides for the abolition of tax and other state obligations.

3. In the end, the Albanian Federation should focus, in the absence of our corporations with economic activity outside the Republic, to attract through tax policies, respectively through the avoidance of double taxation, to make possible the bringing in instead of corporations or parts of corporations led by our compatriots or personalities with high scientific and managerial backgrounds. In this context, the services sector in general and the IT sector in particular, take on a more specific weight.

When state revenues in the form of tax are based, respectively come from sources that have weight in the world economy, then state subsidies, ie the hand of the state (in the form of tax waiver) for the benefit of private persons or legal entities, will to have multidimensional effects. These policies would serve, in our concrete case, various branches of the economy, for example, tourism, support of local producers, agribusiness, mining industry, science and education, etc., giving a deserved place to the national economic thought .

Political Albania, given that it has recently gained the status of a candidate country for EU accession (meanwhile, the real opportunity for accession is expected to be somewhere from the beginning of the third decade – 2030-2035), but within this period should it also opened the process of full internal integration. In function of this strategy goes the beginning of the vetting process in justice, the political retirement of the class of olhocrats, who were and continue to be for more than two decades at the helm of our two republics, and the announcement of coming to the political scene i a new generation of idealists, intellectually formed and with dignity. The joint meetings of our two governments should also be used for the benefit of this strategy. Ministers and state officials, who are genuine patriots, must insist on the full implementation of the decisions taken at those meetings of our governments, not allowing them to turn into friendly meetings with purely propaganda motives.

Since political Albania, meanwhile, was neither a member of the EU nor, consequently, of the EUROZONE, it easily overcame the financial crisis (2008-2010), in which a large part of the southern states of the continent were plunged. ours, first of all Greece and Italy. The Albanian Central Bank did not pay much attention to the low inflation target applied by the European Central Bank, even on the “full employment and growth target” (Thomas Piketyy: 2016). As a reflection of the ideological reflection, which made possible the occasional intervention of the Bank of Albania in the financial market, enabling the slight devaluation of our currency, the lek, thus allowing the policy to restore competitiveness, in favor of the resumption of economic activities, especially in the field of tourism.

The creation of the Albanian Federation within this period, the Republic of Kosovo would automatically include within the interests and policies of the BSH, removing the “convertible euro” from the Kosovo market as a central currency, but reserving and maintaining its competitive position with the dollar american. In this case, the Bank of Albania could apply the same measures of economic activity for the mining and agrarian sector, as it had put them in action for the tourism sector in the years 2010-2015. For Kosovo as a federal unit, it would automatically mean that dividends from sovereignty in the monetary field are added to it, being part of the unique national monetary policies, since then in maintaining the national interest, which in this case means maintaining the low and predictable.

The Albanian Federation has already become a priority issue.

As long as this project is postponed, we will continue to lose territory: 8200 ha that were given to Montenegro without proper explanations and in complete contradiction with our vital interests, but also the tendencies that, in the name of correcting the borders between Albanians and Serbs, in the name of the partition of Kosovo, remain open!


Conclusion

As noted above, historically and lawfully, Kosovo has never been Serbia’s legal property, but it was incorporated as an illegal and alienated territory within Serbia’s colonial sovereignty. Kosovo was fissured from the indigenous territory of the Ethnic Albania by force and genocide committed by Serbia, who has had the allied support of Russia and other European Great Powers represented in the London Conference of Ambassadors in 1913. Additionally, it’s worthy to note that when Serbia was recognized as an independent state in 1878 by the European Great Powers in Berlin’s Congress, Kosovo was not within its territorial and state sovereignty, but rather under Ottoman rule until 1912.

However, Serbia and its citizens know very well this truth de facto and de jure, but have chosen not to accept it as such, since Kosovo has always been in their colonial interests along with other territories of the Ethnic Albania, such as Presheva, Bujanoci and Medevegja.

In addition, Kosovo was a colonial, not minority “new issue” (arise from 1990 when SFRY was destroyed by Slobodan Milosevic’s genocide and militarist Serbia) as Serbian government and Serbian Orthodox Church still are trying to manipulate with it in the face of the international community.

Notwithstanding, thank to the United States and its western European allies (NATO) who have been rescued over two millions Albanian people from Serbia’s genocide, lastly, Kosovo got its independence (February 17, 2008). Therefore, there’s no more anyway to turn back the clock of the past bloody history of colonial Serbia , but it’s time for reconciliation, mutual cooperation and lasting peace between Serbia and independent Republic of Kosovo.


350. Is Kosovo a Precedent? Secession, Self-Determination and Conflict Resolution

Christopher J. Borgen is Associate Professor at St. John's University School of Law in New York City. He spoke at an EES Noon Discussion on June 13, 2008. The following is a summary of his presentation. A slightly different version of this essay originally appeared in International Legal Materials, a publication of the American Society of International Law. Please see Christopher J. Borgen, "Introductory Note to Kosovo's Declaration of Independence," 47 ILM 461 (2008) for the original version, including citations to references. Meeting Report 350.

When I spoke at the EES Discussion in June, 2008, about whether there was a "Kosovo precedent," I had no reason to believe that these issues would soon come to a head in South Ossetia. Having written a legal assessment of the separatist crisis in Moldova, my attention was focused more on the western Black Sea littoral than on the eastern. The essay reprinted here reflects the main points that I made at that June meeting. It considers the legal issues implicated by Kosovo's declaration of independence and the subsequent recognition by various states of Kosovo as an independent country. It also tries to set out the differences between political and legal precedent and how we may frame arguments about what Kosovo means in terms of these two different uses "precedent." In a few places I have included some short updates to reflect recent events.

What is precedent?
The February 17, 2008 declaration by the Parliament of Kosovo stating "Kosovo to be an independent and sovereign state" received a mixed reaction from other countries. While the US, the UK, France, Germany, and certain other EU member states, as well as a host of other countries, formally recognized Kosovo as a new state, others, such Russia, Romania, Moldova, and Cyprus (and of course Serbia), argued that Kosovo's secession and/or the recognition of that secession would be a breach of international law. The majority of states have positions someplace in between these two poles. As of this writing, approximately 46 states have recognized Kosovo's independence.
One issue that seemed to influence states was whether Kosovo's declaration, and its subsequent recognition by many influential states, would be some kind of "precedent" that would effect the resolution of other separatist disputes, in essence ratifying the claims of separatists. In the years prior to the 2008 declaration, other separatists leaders, such as Transnistria's Igor Smirnov, have essentially argued that "if Kosovo gets independence, then so should we." Are they correct?
To assess this question, it is important to first note that when international lawyers and international relations theorists speak of precedent, they use the term in slightly different ways. Whereas political scientists usually use it to refer to a past event that could be politically persuasive or may be used in diplomatic dialogue, lawyers have a stricter understanding of the word and use it when a past event states a rule of law that is to be applied in the current case. As a technical matter, in international law as opposed to domestic law, precedent is not binding. For example, a previous decision of the International Court of Justice in a case between states A and B does not define the legal rule that must be applied in a later case between states C and D. There is, however, a very strong assumption that like cases are to be treated alike. And so, while as a formal matter the precedent is not legally binding, as a practical matter international lawyers will try to maintain a coherent and consistent set of rules across similar cases.
The question, then, is whether Kosovo's declaration and subsequent recognition is the type of event that international lawyers would choose to follow as an example of the elucidation of a legal rule for a particular type of case, or whether it was aberrant and should be instead viewed as a breach of international law. In the case of Kosovo, we need to look first at UN Security Council Resolution 1244 (1999), which provided a framework for approaching the stabilization of Kosovo. Besides this resolution, we need to consider the rules and norms of international law concerning self-determination and secession.

UN Resolution 1244
Serbia and Russia, referring to Resolution 1244's preambular language "[r]eaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia .…", have argued that Resolution 1244 does not allow the secession of Kosovo without the agreement of Serbia. By contrast, the EU has taken the position that Resolution 1244 is not a bar to Kosovo's independence as, in its view, the resolution does not define the outcome of final status talks.
On balance, it appears that Resolution 1244 neither promotes nor prevents Kosovo's secession. Although operative paragraph 1 of Resolution 1244 states that a political solution shall be based on the principles of the annexes, those annexes are silent as to the governmental form of the final status of Kosovo. The annexes only state that, pending a final settlement, an "interim political framework" shall afford substantial self-governance for Kosovo and take into account the territorial integrity of the Federal Republic of Yugoslavia. Moreover, the references to the territorial integrity of Serbia are only in the preambular language and not in the operational language. The document is therefore silent as to what form the final status of Kosovo takes. Much of the debate thus grapples with the broader issues of self-determination and secession under international law.

The law of self-determination and the problem of secession
Perhaps the single most contested issue concerning self-determination is determining what is meant by the self-determination of peoples. At various points in international legal history, the term "people" has been used to signify citizens of a nation-state, the inhabitants in a specific territory being decolonized by a foreign power, or an ethnic group.
A group of experts was convened by the National Assembly of Quebec to provide advice concerning the legal issues implicated by a hypothetical secession of Quebec (the "Quebec Commission"). In its Report of the Group of Experts Concerning the Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, the Quebec Commission explained (in Section 3.07) that the right to self-determination is context-dependent and that different types of peoples lead to different applications of the right to self-determination:

the very fact that the right to self-determination, in the sense of "independence," has been recognized solely in "colonial" peoples is an indication that this right takes on or can take on different meanings for other categories of peoples.

So long as a state provides a minority group the ability to speak their language, practice their culture in a meaningful way, and effectively participate in the political community, then that group is said to have "internal self-determination." Secession, or "external self-determination," is generally disfavored in diplomatic practice. In the opinion re Secession of Quebec, the Supreme Court of Canada found (at paragraph 123) that "[a] right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even then, under carefully defined circumstances…" (Emphasis added.)
Since the birth of the United Nations, diplomats and jurists have emphasized that a right of self-determination was not a general right of secession. Allowing secession as a remedy would have clashed with a cornerstone of the UN, which is to protect the territorial integrity of states. However, one also cannot say that international law makes secession illegal. If anything, international law is largely silent regarding secession. Attempted secessions are, first and foremost, assessed under domestic law. However, a secessionist dispute may implicate international law under specific circumstances including, among others, (a) when a new entity seeks recognition as a sovereign state (in which case there are rules for recognition or non-recognition) and (b) if there is a threat to international peace and security (which would thus likely become an issue for the UN Security Council). Thus, the law of self-determination can be summarized as follows:

¨ Self-determination for colonized peopled allows for the ability to separate the colony from the colonial state so that the colony may gain independence and become a sovereign state

¨ For a state as a whole, self-determination means the right to be free from external interference in pursuit of its political, economic and social goals

¨ For communities that are not colonies and are within existing states, self-determination means "internal self-determination," the pursuit of minority rights within the existing state and,

¨ Some argue that in non-colonial cases, self-determination may also allow for secession under "extreme cases" and "carefully defined circumstances" (to use the terms of the Canadian Supreme Court from the Secession of Quebec opinion).

Whether self-determination gives a remedy of secession outside the colonial context is, in the words of Professor Malcolm Shaw, "the subject of much debate." Jurists who interpret the law of self-determination in this way generally contend that any attempt to claim secession as a remedy must at least show that:

(a) the secessionists are a "people" (in a sense recognized by the international community)
(b) the state from which they are seceding seriously violates their human rights and,
(c) there are no other effective remedies under either domestic law or international law.

I will consider Kosovo under this framework and subsequently turn to the question of recognition.

Application to Kosovo's declaration
The first hurdle is to assess whether the Kosovar Albanians are a "people" for the purposes of the right of self-determination. As explained above, there is little agreement as to what the definition of people even includes. One may argue that the Kosovars are a people, inasmuch as they are of the same ethnicity, perceive of themselves as a group, and have inhabited Kosovo for centuries. Others may respond that they are an Albanian ethnic enclave, rather than a nation unto themselves. In the debate over the declaration and subsequent recognition of Kosovo, the "peoplehood" aspect of the claim has been discussed the least.
Assuming, for the sake of argument, that one finds that the Kosovars are a people, one must then assess whether they can credibly fear the recurrence of serious human rights violations if they stay integrated with Serbia. The International Committee of Jurists who arbitrated the status of the Aaland Islands in 1920-21 found that there was no right to secede absent "a manifest and continued abuse of sovereign power to the detriment of a section of population." Here, there is at least a credible argument that the Serbs were responsible for serious human rights abuses against the Kosovars. Resolution 1244 noted that there was a "grave humanitarian situation" and a "threat to international peace and security." Indeed, it was mass human rights abuses that led to NATO's 1999 intervention. It should also be noted, however, that human rights abuses have been reported to have been committed by Kosovar Albanians as well. To the extent that the international community considers it relevant whether human rights abuses are ongoing, as opposed to historic, the situation in Kosovo is ambiguous. In relation to this question, one may argue that the ongoing international presence in Kosovo is legally relevant as it is evidence of the international community's determination that the situation in Kosovo was and is highly volatile and that it cannot be solved completely via domestic political structures. However, the response is that Serbia has evolved since 1999, and that Kosovars should have no fear of renewed violence.
Finally, assuming the first two tests have been satisfied, one would have to be confident that secession is the only realistic solution to the problems. On the one hand, the political situation prior to the declaration of independence was bleak. As of December 2007, the two sides could not seem to resolve their differences and the political negotiations were declared a failure by the mediators. Given Kosovar expectations, it is unlikely that anything short of military intervention could have kept Kosovo within Serbia. On the other hand, it could be argued that the real bar to a negotiated solution was intransigence on the part of the Kosovars and their supporters: the political situation was bleak because it was made so by one side.
In short, an argument claiming a Kosovar right to secede has numerous hurdles to pass. Perhaps the tallest one is the belief by many international lawyers that, outside of decolonization, there is no right to secession. Secession may exist as a fact, but it cannot be claimed as a right or remedy. Issues of legality would then focus on recognition, to be considered below.
If one does assess Kosovar claims based on the model that external self-determination may be allowed in extreme cases, there are still various difficulties—ranging from how one defines "people" to whether secession really is the only realistic solution. That being said, the facts of Kosovo's case are more persuasive than those of other separatist groups, such as the Transnistrians in Moldova. This sense that Kosovo has at least a better case than most other separatist groups is reflected by the debates over whether or not to recognize Kosovo's declaration.

The law and politics of recognizing Kosovo's declaration
Daniel Thurer has argued that in difficult situations such as these, the issue of legality often shifts from the question of the legality of secession, to the question of the legality of the recognition of secession—a subtly different, but nonetheless different, question. The general understanding is that recognition itself is not a formal requirement of statehood. Rather, recognition merely accepts (or "declares") the factual occurrence of the establishment of a new state. Nonetheless, no state is required to recognize an entity claiming statehood.
To the contrary, a good argument may be made that states should not recognize a new state if such recognition would perpetuate a breach of international law. In the words of the influential treatise Oppenheim's International Law (Ninth): "Recognition may also be withheld where a new situation originates in an act which is contrary to general international law."
State practice evinces that, absent a clear indication of illegality, in matters of state recognition there is considerable deference to the political prerogatives of outside states to decide whether or not to recognize an aspirant state. This does not, in and of itself, make Kosovo's secession legal. But, it does give a window as to how acceptable a particular secession is to other states and, possibly, whether they view that recognizing the secession would perpetuate an illegality.
Russia and Serbia argue that, inasmuch as Serbia did not consent to an alteration of its borders, there can be no legal recognition. Absent any qualification, that analysis is inaccurate. Changing the boundaries of a sovereign state (Serbia) in and of itself would not make Kosovar independence illegal because, as discussed above, the international community has come to accept secession as a fact under certain circumstances. As a comparative matter, the international community has been relatively enthusiastic for Kosovar independence compared to other secessions. Although some have argued that Kosovo's declaration is a failure for having garnered "only" 46 recognitions (as of this writing), this is actually quite successful compared to attempted secessions such as those of the Turkish Republic of Northern Cyprus, Transnistria, Abkhazia, South Ossetia and Nagorno-Karabakh. Those secessionist entities have held territory anywhere from 15 to 30 or more years and, at best, have one or two states that recognize them. The secessionists may hold territory, but they are political pariahs. (It will be particularly interesting to see what happens in terms of recognizing South Ossetia.) And there are the various secessions, such as Katanga and Biafra, which collapsed quickly due in part to the absence of foreign recognition. In this light, Kosovo is closer to the "successful" secessions of Bangladesh and Eritrea.

Is Kosovo unique? Implications for other secessionist claims
Does the example of Kosovo set a legal precedent for the other separatist conflicts, such as those in Abkhazia, South Ossetia, Nagorno-Karabakh and Transnistria? Or, as the US and UK have argued, is Kosovo sui generis and of no precedential value?
It can be argued that Kosovo is different from other secessionist claims because Kosovo has been under international administration due to the fact that the international community considered the situation to be volatile. While secessions are primarily an issue of domestic law, Resolution 1244 internationalized the problem and moved Kosovo from being solely under Serbian sovereignty into a grey zone of international administration. Although this area of international law is not sharply defined, reintegrating such a territory is different from assessing a claim by a separatist group that, on its own, is seeking to overturn the authority of the pre-existing state and unilaterally secede. This, however, is a controversial position.
That being said, one should note that as of this writing, neither the United States nor other major recognizing states have used the argument that Kosovo is owed sovereignty as a legal right. In short, it is too early to tell whether, as a matter of law, the events in Kosovo will lead to a shift in legal interpretation.
Regardless, Kosovo's declaration, and its recognition by dozens of states, has already started to play a role in the evolving political rhetoric of parties involved in secessionist conflicts. So, while there is no Kosovo "precedent" in international law (as of yet), there is now, based on the reactions of other secessionist entities, as well as Russia, a Kosovo argument in international diplomacy. Even before the August fighting, Kosovo's declaration had seemingly redoubled claims by Abkhazia and South Ossetia for independence from Georgia. Soon after Kosovo's declaration, Russia ended its adherence to a 12-year-old economic embargo of Abkhazia, although Russia stated that its policy shift was not a reaction to the declaration.
Much of Russia's political rhetoric during the August fighting had echoes of Kosovo. Yet, the echoes were not from the declaration and recognition of Kosovo but from the political language related to NATO's 1999 campaign (with its references to ethnic cleansing). It has been careful, however, not to state that Kosovo's declaration itself was legal and provided legal precedent for South Ossetian secession. Legal precedents have a way of being applied in places where you least expect them and the last thing Russia wants is to empower Chechen separatists.
Some Russian politicians have stated that the situation in South Ossetia is unique. This would make it the second "unique" secessionist crisis in six months. Despite the declarations and best intentions, simply saying something is "unique" may not be enough to prevent a shift in state practice. For example, a good argument could be made that while recognizing Kosovo would be consistent with international law, recognizing South Ossetia would not be. Thus, as a matter of law, one is not a precedent for the other. However, in the end, we need to keep in mind that sometimes the most effective law in politically-charged situations may be the law of unintended consequences. Political precedent is not the same as legal precedent.


Watch the video: Κόσοβο: Λίγο πριν από τους βομβαρδισμούς