Preventing the Emergence of Self-Determination as a Norm of Secession: An Assessment of the Kosovo ‘Unique Case’ Argument

Abstract

When Kosovo declared independence, in February 2008, it was stated that the move was not an act of self-determination. Instead, the key states that supported the decision insisted that the case for statehood arose from a unique set of circumstances. Kosovo was not a precedent; it was a sui generis case in international politics. This essay considers the arguments underpinning this claim to exclusivity and argues that, taken either individually or collectively, the main justifications used to support Kosovo's ‘unique’ statehood—such as the abuse of human rights—in fact have serious consequences for other separatist conflicts elsewhere.

Notes

¹ ‘Media Stakeout: Informal Comments to the media by the Permanent Representative of the United Kingdom, Ambassador Sir John Sawers KCMG, on the Situation in Kosovo and other Matters’, Webcast, UN Website, 19 December 2007.

² British official, conversation with author, 18 December 2007. In fact, the official stated that they were rather pleased that the specific comment had appeared to have gone ‘unnoticed’. Certainly, it did not attract any coverage in the international media at the time.

³ British official, conversation with author, 18 December 2007.

⁴ For an overview of ways in which states have approached self-determination in the context of state recognition over the course of the past 200 years, see Fabry (2010).

⁵ In this context, the term ‘sui generis’ [‘of its own kind’] is used to denote that Kosovo stands alone and apart in international politics. It is argued that the specific characteristics of the situation are such that it does not merit meaningful comparison with other conflicts. The term 'unique case' has also been widely used.

⁶ The exact number is unclear as several claimed recognitions, such as Oman and Nigeria, are disputed. For an analysis of the methods of, and problems relating to, recognition see Ker-Lindsay (2012).

⁷ The term ‘contested state’ is itself contested in International Relations. Other similar terms used include de facto states, unrecognised states and, confusingly, quasi-states—a term that is more usually used to describe recognised states that have ceased to function effectively as states.

⁸ For a discussion of these principles see Crawford (2006, pp. 45–89).

⁹ The first significant articulation of this principle was at the start of the 1930s. Following Japan's invasion of Chinese Manchuria, in 1931, which led to the establishment of Manchukuo, the Manchu State, Washington announced that it would not recognise the territory as a state. For more on this decision, and the implications it has had on recognition practices since then, see Turns (2003).

¹⁰ Again, this prohibition on the right to secede was explicitly raised by Judge Koroma in the Kosovo ICJ case, when he stated: ‘International law does not confer a right on ethnic, linguistic or religious groups to break away from the territory of a State of which they form part, without that State's consent, merely by expressing their wish to do so. To accept otherwise, to allow any ethnic, linguistic or religious group to declare independence and break away from the territory of the State of which it forms part, outside the context of decolonization, creates a very dangerous precedent. Indeed, it amounts to nothing less than announcing to any and all dissident groups around the world that they are free to circumvent international law simply by acting in a certain way and crafting a unilateral declaration of independence, using certain terms’ (Koroma 2010, para. 4).

¹¹ For more on the Commission, see Pellet (1992).

¹² This view was, in fact, stated to the author by Martti Ahtisaari in September 2008.

¹³ For more on the background to Kosovo, see Malcolm (2002), Vickers (1998) and Judah (2002, 2008).

¹⁴ For more on the emergence of the KLA, see Perritt (2008) and Pettifer (2012).

¹⁵ Moreover, at this stage, the KLA was widely seen as an illegal insurgency. Speaking in Prishtina, Robert Gelbard, the US special envoy for the Balkans, famously described the KLA as a terrorist organisation. ‘The KLA—Terrorists or Freedom Fighters?’ BBC News, 28 June 1998, available at: http://news.bbc.co.uk/1/hi/world/europe/121818.stm, accessed 29 April 2013.

¹⁶ ‘Statement on Kosovo Adopted by the Members of the Contact Group, Meeting in London on 9 March 1998’, S/1998/223, available at: http://www.un.org/peace/kosovo/s98223.pdf, accessed 1 May 2013; ‘Statement on Kosovo Issued by Members of the Contact Group in Bonn on 25 March 1998’, UN Security Council Document, S/1998/272, available at: http://www.un.org/peace/kosovo/s98272.pdf, accessed 1 May 2013; UN Security Council Resolution 1160(1998), 28 March 1998, available at: http://www.un.org/peace/kosovo/98sc1160.htm, accessed 1 May 2013.

¹⁷ ‘In Balkans Again, Promises, Promises’, New York Times, 14 October 1998, available at: http://www.nytimes.com/1998/10/14/world/conflict-in-the-balkans-news-analysis-in-balkans-again-promises-promises.html, accessed 1 May 2013.

¹⁸ As noted, Milošević believed that NATO forces could be used either to detach Kosovo from Serbia, or to depose him. While this issue has often been cited as the main reason why Milošević rejected the agreement, many have viewed it as little more than a smokescreen to disguise his overall opposition to the deal. Whatever the truth of the argument, in a review of the events surrounding Kosovo, the Foreign Affairs Committee of the British House of Commons concluded that, ‘whatever the actual impact of the Military Annex of the Rambouillet proposals on the negotiations, NATO was guilty of a serious blunder in allowing a Status of Forces Agreement into the package which would never have been acceptable to the Yugoslav side, since it was a significant infringement of its sovereignty’ (House of Commons 2000, para. 65).

¹⁹ Specifically, the intention would be to establish, ‘a political process 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 Federal Republic of Yugoslavia and the other countries of the region’, Annexe 1, UN Security Council Resolution 1244 (1999), 10 June 1999, available at: http://www.nato.int/kosovo/docu/u990610a.htm, accessed 1 May 2013.

²⁰ Paragraph 5 of Annex 2 states: ‘Establishment of an interim administration for Kosovo as a part of the international civil presence under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, to be decided by the Security Council of the United Nations. The interim administration to provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants in Kosovo’, available at: http://www.nato.int/kosovo/docu/u990610a.htm, accessed 1 May 2013.

²¹ British official, conversation with the author, 18 December 2007. This was subsequently, and separately, confirmed to the author by other British officials, even as recently as 2010.

²² For instance, John Bolton, who had served as the US permanent representative to the UN throughout 2006, noted on several occasions the deep-rooted anti-Serbian attitudes within the State Department and argued that the US should not recognise a unilateral declaration of independence. Such comments were made in an interview with Voice of America in October 2007. He had also made the same comments about State Department bias and the dangers of recognising UDI and in an interview with the Serbian service of the BBC a few months earlier. ‘SAD za nezavisno Kosovo’ [‘USA for an Independent Kosovo’], BBC Serbian Service, 11 May 2007, available at: http://www.bbc.co.uk/serbian/news/2007/05/printable/070510_bolton_kosovo.shtml, accessed 29 April 2013. See also Lyons (2008). Admiral Lyons was commander in chief of the US Pacific Fleet and senior US military representative to the United Nations.

²³ As one leading political figure stated, the Kosovo Albanian leadership, ‘understood that Serbia cannot just get out, and the process of independence for Kosovo cannot be initiated without the presence of NATO, the EU, and the OSCE. A Western protectorate, and later independence through a referendum, is the national strategy of the Albanians of Kosova’ (Shala 2000, p. 187).

²⁴ This was stated to the author by two US State Department officials in April 2005.

²⁵ ‘US Embassy Cables: Litvinenko—Did Putin Know?’, The Guardian, 1 December 2010.

²⁶ US official, conversation with the author, April 2005.

²⁷ For more on this process, see Weller (2009), Ker-Lindsay (2009b) and Perritt (2009).

²⁸ Martti Ahtisaari, conversation with the author, 9 September 2008, London. Ahtisaari also supplied the author with a paper that he had distributed to Britain, France, Germany, Italy, the US and Russia—the so-called Contact Group—outlining the way in which they could contribute to the process. This specifically included a statement that they should convey to Belgrade that Kosovo was lost.

²⁹ The weakness of this approach has been recognised by a number of observers. As one high-level diplomat closely involved with the Kosovo status process, who has since spoken strongly in favour of independence, told the author, in his handling of the talks Ahtisaari had ‘made a mistake, an avoidable tactical mistake’ (telephone interview, December 2008).

³⁰ This was even recognised by Serbia. ‘Policy of Peace Serbia's Goal—Tadić’, B92, 1 December 2007; ‘Jeremić, Rupel Discuss SAA, Kosovo’, B92, 12 January 2008.

³¹ On 10 June, during the first visit to Albania by a serving US president, George W. Bush announced that his administration was committed to statehood, regardless of the current deadlock. As he told cheering crowds, ‘at some point in time, sooner rather than later, you've got to say enough is enough, Kosovo is independent. And that's the position we've taken’ (United States 2007).

³² For example, during a UN Security Council debate on the subject of Kosovo's status, Karen Pierce, the British representative, insisted that as the Kosovo Albanians would not accept anything other than independence, it was pointless for Belgrade to offer anything else. ‘Ban Urges Action on Kosovo's Political Future’, DPA, 22 June 2007, available at: http://news.monstersandcritics.com/europe/news/article_1321239.php/Ban_urges_action_on_Kosovo_s_political_future, accessed 29 April 2013; ‘Russia Digs in Heels Against West's Kosovo Plan’, Reuters, 22 June 2007, available at: http://news.oneindia.in/2007/06/23/russia-digs-in-heels-against-wests-kosovo-plan-1182566090.html, accessed 29 April 2013.

³³ See, for example, Jordan's presentation before the ICJ, CR 2009/31, p. 30, available at: http://www.icj-cij.org/docket/files/141/15728.pdf, accessed 1 May 2013.

³⁴ ICJ, CR 2009/32, p. 24, available at: http://www.icj-cij.org/docket/files/141/15734.pdf, accessed 1 May 2013.

³⁵ See ‘Kosovo Case Unique, Says Miliband’, BBC News, 19 February 2008, available at: http://news.bbc.co.uk/1/hi/uk_politics/7252212.stm, accessed 1 May 2013; ‘The Case for Kosovo’, US State Department, available at: http://www.state.gov/p/eur/ci/kv/c24701.htm, accessed 1 May 2013.

³⁶ The preamble of the declaration states, ‘Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation’, BBC News, 17 February 2008, available at: http://news.bbc.co.uk/1/hi/world/europe/7249677.stm, accessed 1 May 2013.

³⁷ ICJ, CR 2009/30, p. 23, available at: http://www.icj-cij.org/docket/files/141/15726.pdf, accessed 1 May 2013.

³⁸ For example, in April 2007 a political storm erupted when the German ambassador in Belgrade suggested that if Kosovo did not become independent it could lead to problems in Vojvodina and the Sandžak (a region of southern Serbia). The comments provoked an outcry, and even led the German parliament to call for an explanation. The ambassador was forced to backtrack very quickly. ‘Zobel Apologizes, Government Sends Protest’, B92, 27 April 2007.

³⁹ The role of violence in the decision to recognise Kosovo is also explored by Roseberry (in this collection).

⁴⁰ ‘Evicted Serbs Remember Storm’, BBC News, 5 August 2005.

⁴¹ A call for the right of remedial secession to be examined was therefore made by Judge Bruno Simma (2010) in his separate declaration. However, the other judges explicitly stated that they did not want to tackle this thorny issue (ICJ 2010, para. 82).

⁴² ‘Kosovo Declares its Independence from Serbia’, New York Times, 18 February 2008.

⁴³ Paddy Ashdown, comments made during an interview on Sky News, 9 December 2007. Another observer put the case more harshly: ‘Fault for the war, originally, lies with local actors on the ground. However, fault for this perverse non-peace and for much of the nonsense that has prevailed within it belongs to the international actors who waged a war without the guts to dictate clear terms afterwards’ (Jansson 2007).

⁴⁴ ICJ, CR2009/29, p. 45, available at: http://www.icj-cij.org/docket/files/141/15724.pdf, accessed 1 May 2013.

⁴⁵ ICJ, CR2009/29, p. 49, available at: http://www.icj-cij.org/docket/files/141/15724.pdf, accessed 1 May 2013.

⁴⁶ ICJ, CR 2009/30, p. 23, available at: http://www.icj-cij.org/docket/files/141/15726.pdf, accessed 1 May 2013.

⁴⁷ In contrast, Russia, China, Brazil and Argentina, all of which were on the Security Council in 1999, and were involved in the deliberation over 1244, argue that the resolution is quite clear in reaffirming the territorial integrity of Yugoslavia and thus precluded independence as a final status.

⁴⁸ The five EU members that have not recognised Kosovo are Cyprus, Greece, Romania, Slovakia and Spain. For an analysis of their respective positions, as well as Serbia and Bosnia, see Kosovo Foundation for Open Society and British Council, ‘Kosovo Calling: International Conference to Launch Position Papers on Kosovo's Relation with EU and Regional Non-recognising Countries’, 2012. Also see Csergő and Lezová (both in this collection) for respective contributions on Romania and Slovakia.

⁴⁹ ICJ, CR 2009/33, p. 19, available at: http://www.icj-cij.org/docket/files/141/15736.pdf, accessed 1 May 2013.

⁵⁰ ‘Cyprus Will Never Recognise Kosovo’, Cyprus Mail, 8 April 2008.

⁵¹ As one Kosovo Albanian official stated, ‘We are making lots of efforts to “convince” these states that Kosovo does not set a precedent. It is a sui generis case, with very specific historical and political circumstances. Those member countries that haven't recognised us so far have internal problems, thus they think recognition of Kosovo can reflect negatively in their inner political realm. We will tell them that this is not the case and the ICJ ruling has proven that further’. ‘“Next Step for Kosovo is UN Membership”: Ambassador’, Euractiv, 26 July 2010.

⁵² For example, the foreign ministry in Transdniester welcomed the ‘landmark’ decision, viewing it as providing a ‘model’ (RFE/RL, 28 July 2010). At the same time, Milorad Dodik, the prime minister of Republika Srpska, one of the two entities that make up Bosnia & Hercegovina, raised the possibility that the Bosnian Serbs would follow the Kosovo Albanian lead and declare independence (Radio Srbija, 24 July 2010). Likewise, in Turkey and northern Cyprus there was considerable speculation that the opinion could open the way for the recognition of the TRNC; see also Caspersen (in this collection).

⁵³ For example, many saw it as a chance for Moscow to seek revenge for its humiliation in 1999, when it had been unable to prevent the NATO bombing of Yugoslavia. ‘Wisner: Russian Opposition to Kosovo Independence “Unbelievably Regrettable”’, Council on Foreign Relations, 12 February 2008; ‘A Russian Puzzle’, Guardian Unlimited, 29 March 2007; ‘Analysis—Kosovo Offers Russia a Chance to Avenge 1999 Defeat’, Reuters, 12 February 2008.

⁵⁴ ‘Rice, Putin Talks End, EU–Russian Summit Announced’, DPA, 15 May 2007.

⁵⁵ For example, some observers believed that Russia was not serious in its threat to block Kosovo's independence (see Holbrooke 2007).

⁵⁶ A number of attempts were made over the course of several months to persuade Moscow to accept the document. ‘Putin to Push for More Kosovo Talks’, B92, 29 June 2007.

⁵⁷ ICJ, CR 2009/30, available at: http://www.icj-cij.org/docket/files/141/15726.pdf, accessed 1 May 2013.