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Kosovo as Precedent and Pretext: New Debates and Old Lessons

JURIST Guest Columnist Timothy Waters of Indiana University School of Law Bloomington says that Kosovo's declaration of independence represents a problematic precedent in international law that may ironically bring us back to self-determination as the core historical and moral justification for secession from Serbia...

Even though Kosovo's leaders have now declared independence, the present period of intense diplomatic maneuvering will continue, further unsettling an already fragile situation. The U.S. and most European states will recognize Kosovo within days, but Russia and Serbia are firmly opposed; the Security Council is meeting in emergency session. Both sides are marshaling arguments about Kosovo's status and the implications of independence in the Balkans and beyond. How much do these arguments matter? International law’s contribution to the Kosovo crisis has been ambiguous at best; Kosovo’s legacy for international law may prove more explosive. Here are some of the most unsettled, and unsettling, issues:

Russia’s Right...?

Should Kosovo be recognized as an independent state? There are compelling arguments on both sides. The commitments the U.S., European States and Russia made in the Helsinki Final Act, for example, suggest that Serbia's territorial integrity must be respected, as does Security Council Resolution 1244, which created the international protectorate over Kosovo and laid the legal groundwork for the final status process. Russia further claims that 1244 only authorized a UN administration – and therefore the planned handover to an EU supervisory mission is illegal – and that the since the resolution is still in force and has not been superseded by any other Security Council action, the Kosovo Assembly’s action is in violation of 1244.

But, counter Western governments, the campaign of ethnic cleansing that Serbia conducted against Kosovo's Albanians in 1999, and the UN protectorate established under 1244, confirm that Serbia has lost any legitimate right to retain sovereignty. Anyway, 1244 doesn’t say anything about the outcome of the final status process, so independence is not precluded. The Security Council is supposed to decide the province's status, but it is clearly deadlocked – and that provides a further argument for Western recognition: UN paralysis compels outside action. Finally, the Declaration expressly invites the EU mission – though that hardly persuades unless the Declaration is valid.

Who’s right? Security Council resolution 1244 doesn’t actually say anything about creating a new state, and prudential interpretative principles as well as the general purposes of the UN Charter would probably counsel against reading in an extraordinary right to alter the borders of another state. Western diplomats rather lamely note that 1244 only mentions territorial integrity in the non-operative preamble – but the preamble’s reference is to the Helsinki Final Charter, whose strong protections for territorial integrity apply whether they are mentioned or not. And the first article of the operative text “[d]ecides that a political solution to the Kosovo crisis shall be based on the general principles in annex 1 and. . .annex 2” – and in those annexes, Yugoslavia’s (read Serbia’s) territorial integrity is mentioned.

Besides, so what if 1244 doesn’t textually exclude the possibility of independence? If partition prohibited by the Charter and contrary to its purposes, it’s ultra vires for the Security Council in any event. You can’t bootstrap in an unavailable power to partition just by failing to mention the legal and legitimate outcomes with sufficient specificity. Still Western powers have to bootstrap onto 1244 for a simple reason – they know they can’t get another, clearer resolution through the Security Council.

Of course, who really cares about such lawyering? Russia may be right, but it’s wrong. The argument that really drives Western support for the Kosovars’ cause – that independence is a necessary response to the ethnic cleansing suffered by Albanians, who cannot trust Belgrade ever again – is empirically persuasive and morally powerful. Curiously, though, it finds little traction in international law.

There is language – in the General Assembly’s Declaration on Friendly Relations, Resolution 2625(XXV), for example – suggesting that territorial integrity only protects states “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour” – something Serbia patently was not throughout the 1990s. More recently, the ‘responsibility to protect’ has gained considerable traction. But a right to intervene and a right to partition are not identical. These claims are highly general, and have never been applied to forcibly partition a country against its will. No one has established a clear threshold test for such an action. (The Secretary General convened a working group in 2007 to take the “inevitable next step” and give the responsibility to protect “practical meaning,” which rather suggests it doesn’t have it yet.)

The US and majority European view (not, pointedly, the EU’s, since several EU states won’t be recognizing Kosovo) is a replay, in a sense, of the justifications surrounding NATO’s original intervention in Kosovo: that did not have the Security Council’s sanction either, and NATO leaders at the time were mostly silently about the legal basis. Their strategy was to declare the moral necessity of what they were doing, and let it blow over. A prominent commission of scholars termed the Kosovo war ‘illegal but legitimate,’ and that same sensibility informs Western approaches to Kosovo’s independence now: The case is so compelling, why worry about the technicalities, especially when Russia is playing the spoiler? Look for arguments, once again, about how Russia’s exercise of its veto proves the need for reform at the UN. (Meanwhile, look for the US to exercise its veto when Russia demands UN action to quash Kosovo’s declaration.) And of course, the legal niceties notwithstanding, if Western recognition sticks and Kosovo maintains its independence, then, over time, that fact alone will constitute an important data point proving that the right to secede following ethnic cleansing – and the responsibility to protect – will have become established.

...Russia Might

Of course, formal legal arguments won’t decide Kosovo's future – they are, at most, tools in the hands of the contending parties – but the underlying ideas about state sovereignty, territorial integrity, fear of fragmentation, commitment to supranational norms do play an important role in the debate. So, what kind of legal precedent does independence for Kosovo create in international law – or at least what predictable effect is it likely to have?

Russia has played a skillful hand in deflecting momentum toward independence. A little more than a year ago, when the UN's envoy, Martti Ahtisaari, announced his plan for the province, most Western experts assumed Kosovo would be independent by the middle of 2007. But Russia insisted on a negotiated solution and its consistent and effective reminders about the threat to the norm of territorial integrity that independence would pose implicitly linked Kosovo's independence to the outcome of other conflicts in which it has an interest. The states within Europe that are opposed to Kosovo's independence, like Cyprus and Spain, have legitimate concerns about their own territorial integrity.

Citing the province's unique history of suffering and its recent UN-sanctioned international supervision, the United States insists that Kosovo isn't a precedent. But what does that mean? It's not as if there is a clear answer in international law about this that everyone agrees upon; the answer is going to come out of an ugly and protracted political contest, and will be read backwards from subsequent events.

Independence for Kosovo means the partition of Serbia, and it's not possible to simply declare that it doesn't have any effect on other situations. It's a precedent if people think it is, and Vladimir Putin, for one, is determined to exploit Kosovo for other conflicts in the former Soviet sphere – there is a real chance Russia will move to bolster its support for breakaway regions in Georgia, for example. Certainly, the Serbs of Bosnia have suggested that if Kosovo can separate from Serbia, they can separate too. Are these cases connected? Legally no, but politically, of course they are.

Possibly the best proof that Kosovo is a precedent is that its Declaration of Independence insists it’s not. Kosovo’s Assembly actually “Observ[es] that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation.” That’s a far cry from the self-evident universalism of the American Declaration of Independence or the French Declaration of the Rights of Man and Citizen – though one senses the hand of diplomats from these very countries vetting drafts of Kosovo’s declaration to ensure this level of humility.

But inserting a clumsily obvious phrase in someone else’s founding document isn’t going to determine this event’s meaning. The U.S. wants independence for Kosovo but it doesn't want to pay the price in precedent and politics which independence implies. The U.S. can unilaterally recognize Kosovo, but it can't control those other effects, and Russia's actions. These concerns are a large part of the reason that Europe and the U.S. – despite favoring Kosovo's independence – were for so long unwilling to press ahead in the face of Russian opposition, hoping instead that the problem could be put off.

Because the Serbs Can...

The problems are still there. Whatever its legal or moral justifications, independence will not actually change much in the short term, and it will likely make one thing worse: Kosovo’s Serb minority is deeply alienated from the Albanian majority, and in the north, where Serbs predominate, they are unwilling to accept the new state’s authority. The Ahtisaari Plan contains generous proposals to protect Serbs cultural and political rights, and Kosovo’s Assembly has pledged to implement the Plan in full. But there’s no indication that northern Serbs – who maintain close ties to Belgrade, which subsidizes the Serb presence in Kosovo – will agree to integrate. From their point of view, they have no reason.

One way to solve the problem of the north would be to not try to solve it – instead, simply let that area remain part of Serbia, and limit the territory of the new state to those areas populated by Albanians who have a legitimate claim to international intervention to protect them from a regime that has proven unacceptably dangerous to them. Indeed, if we accept that the responsibility to protect justifies intervening, we still have to ask, ‘to protect whom?’ Our responsibility isn’t to a territory, but to the people Belgrade put at risk. That responsibility may justify recognizing an independent state for Albanians, but does it justify removing parts of Serbia whose population neither wants nor needs our protection?

The potential benefits of a flexible territory approach – grounded in the triple principles of respecting sovereignty where possible, promoting democratic choice, and protecting individuals from repression – are obvious: greater scope for a negotiated solution, simplification of Kosovo’s demography, which in turn makes its governance less fragile; and of course, for the Serbs in the north themselves, the opportunity to remain citizens of their preferred state without moving. Nothing in 1244 would bar such a solution, yet any border adjustment has been categorically excluded by the Contact Group responsible for final status negotiations since the outset. It is no exaggeration to say that the one plausible path to compromise has never been on the table – which is as good a proof as any that ideas can have tremendous power in politics.

Another, Older Way

Admitting a solution for the northern Serbs on the basis of their political desires also suggests that there is another way to justify Albanians’ independence – one not recognized by current law, but with strong historical roots and strong moral intuitions supporting it: a return to self-determination. Kosovo’s Albanians ought to have their independence not because they were oppressed or subjected to ethnic cleansing, nor because the great powers allow it, but by virtue of their separate identity and overwhelming majority on the territory – by virtue of their existence as a people that desires to determine its own destiny. Looking back, surely we could all agree that it would have been better to recognize the independence of Kosovo’s Albanians when the first called for it in the early 1990s, before the exterminations and the expulsions; surely no people should have to suffer as they did before claiming what so many have as a right. Now that would be a precedent worth recognizing.

Timothy William Waters helped prepare the indictment of Slobodan Milosevic. He is now an associate professor of law at Indiana University (Bloomington).

February 18, 2008

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1/ The NATO bombardment of Serbia was plain illegal. Helena Ranta, the Finish pathologist, finally did confess under pangs of conscience that the Racak affair, used as an excuse for the NATO aggression, was fabricated. Mr. Milosevic proved that in The Hague too.

2/Mr. Walter J. Rockler wrote in 1999: " We have engaged in a flagrant military aggression, ceaselessly attacking a small country primarily to demonstrate that we run the world...As a primary source of international law, the judgment of the Nuremberg Tribunal in the 1945-1946 case of the major Nazi war criminals is plain and clear. Our leaders often invoke and praise that judgment, but obviously have not read it. The International Court declared:
"To initiate a war of aggression, therefore, is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." (Walter J. Rockler was a prosecutor at the Nuremberg War Crimes Trial. This essay originally appeared in the Chicago Tribune.)

3/General Lewis MacKenzie wrote the following on April 6th 2004 in the article for the Canadian National Post entitled " We Bombed the Wrong Side ": " The Kosovo-Albanians have played us like a Stradivarius. We have subsidized and indirectly supported their violent campaign for an ethnically pure and independent Kosovo.We have never blamed them for being the perpetrators of the violence in the early '90s and we continue to portray them as the designated victim today in spite of evidence to the contrary. When they achieve independence with the help of our tax dollars combined with those of bin Laden and al-Qaeda, just consider the message of encouragement this sends to other terrorist-supported independence movements around the world. Funny how we just keep digging the hole deeper! "
Maj-Gen. Lewis MacKenzie, now retired, commanded UN troops during the Bosnian civil war of 1992.

4/ The former US Ambassador to the FRY William Montgomery expressly stated in an interview for the RTS - Serbian TV - on March 11th 2007 that the decision to grant Kosovo independence was taken in 1999. He did not say by whom this decision was taken, but everyone can draw their own conclusions. This proves that "The Merciful Angel" was undertaken in order to take Kosovo away from Serbia and thus also proves its illegality. It was a land-grab aggression.

5/ Double jeopardy principle must apply in international law too. Even if we imagine that "The Merciful Angel" was undertaken under the human rights pretext, Serbia cannot be punished twice, now being robbed of 15% of its territory.

6/ The famous Quebec Advisory Opinion rendered by the Supreme Court of Canada recognizes two types of self-determination: internal and external. The Albanians have one state already as the expression of their right to self-determination; that state is The People's Republic of Albania. The Albanians in Serbia therefore have status of a minority. Thus they have the right to internal self-determination only.

7/Kosovo is presently the territory with probably the worst human rights record in the world: 250,000 Serbs have been ethnically cleansed since 1999, about 1,500 killed; about 150 Christian churches and monasteries destroyed. This cannot be rewarded with independence.

8/ It was exactly Mr. Ahtisaari who signed the Ahtisaari-Chernomirdin-Milosevic Agreement on 8 June 1999 which provided for the cessation of hostilities between Serbia (FRY) and NATO. According to that Agreement, which provided the basis for the UN SC Resolution 1244, the Serbian territorial integrity is preserved and Kosovo is a part of Serbia.

9/ To state that that Serbia was/is not “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour” is untrue. There is over 20 different minorities living in Serbia, as opposed to other former Yugoslav republics and Kosovo.

10/ Independence/recognition of Kosovo is therefore illegal and would mark the end of the world order as we know it. It will also be the debacle of international law with many flash-points created around the world.

Goran Cvetic, LL.M.(LSE),
Member of Slobodan Milosevic Defense Team

February 18, 2008  

It is premature to recognize Kosovo as an independent state. Recognition is premature because Kosovo is not yet fully sovereign.

To recite the familiar formula, an entity is a state if it has a permanent population, defined territory, a government exercising authority over both, and capacity to carry out international relations. These criteria are set out in the Convention on the Rights and Duties of States, (done at Montevideo in 1933 (49 Stat. 3097, T.S. 881, 165 L.N.T.S. 19, 3 Bevans 145.)) and are considered black letter law.

However, Kosovo's declaration itself requires that Kosovo's governmental structures defer to outside authorities. The declaration states explicitly that Kosovo fully accepts the Ahtisaari Plan and will follow it. Notably, the plan allows an outsider to veto Kosovo's new constitution. And there are other curbs on the Kosovo government's authority as well. A country that can't by itself "institute a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness," it doesn't have the authority required to meet the Montevideo criteria.

Recognition should wait until the Ahtisaari plan plays out.

Key quotes:

"2. We accept fully the obligations for Kosovo contained in the
Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in
the years ahead. We shall implement in full those obligations"

Ahtisaari Plan:
"10.4 The Assembly may not formally approve the Constitution until such time as the ICR [International Civilian Representative, appointed by "key international stakeholders" and the European Union] has certified it as in accordance with the terms of this Settlement."

February 18, 2008  

Mr. Waters is trying hard to be a good Leninist with that self-determination thesis at the end but gets his ethnicities mixed up. "There is another way to justify Albanians’ independence?" Wait, last time I checked Albania was an independent country. Albanians can't deserve a state because they already have one. Which is entirely consistent with KLA's agenda of establishing Greater Albania. So what Mr. Waters really means to say is that Albanians deserve land Kosovo. Why? Because of the "historical roots", "separate destiny", and "overwhelming majority". Since the first two are precedents hardly worth recognizing, that just leaves us with majority, which is another way of saying - cleanse thou neighbour and thou shalt be free i.e. grab his land.

February 22, 2008  

Waters' blind eye for Western-backed Albanian terrorism and atrocites leading up to our war crime Kosovo war indicates either cynical bias or ignorance of what really went on there.

The Albanians' "crib war" and ethnic cleansing of Serbs had been going on for decades. And the report that Osama bin Laden was in Kosovo Liberation Army (KLA) headquarters in 1999 should make anyone stop and reconsider.

In any case, the Serbs' ethnic cleansing of Albanians didn't start until we started bombing them after they rightly walked out of the Rambouillet Treaty which was designed to MAKE them walk out. Appendix B of it was an unconditional occupation -- unconditional SURRENDER -- ultimatum Blair and Clinton well knew the Serbs would never accept. (I blew the whistle about this on H-Diplo on 14May99, and Henry Kissinger did so in his 31May99 Newsweek article "New World Disorder," without mentioning App. B by name. Senator Don Nickles raised the issue during the Senate's debate about whether or not President Clinton should get war/dictatorial powers -- something being pushed by neocons Joe Lieberman and John McCain.)

Like Iraq, our Kosovo war/occupation is naked aggression like that which preceded World War II. Before Waters would let go the Rule of Law in the world so easily, he might pause to consider what reversion to the Rule of Force -- might makes right -- means: that Russia and China are far better able to win that trial ... of brute strength ... than we.

February 27, 2008  


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