JURIST - Forum: Kosovo Independence Will Succeed Despite Russian Legal Opposition

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that for historical and humanitarian reasons Kosovo's bid for self-determination will prevail over Russian legal objections despite the fact that the province's unilateral secession from Serbia has been sanctioned neither by Serbia nor the UN Security Council...

With Kosovo's long-awaited declaration of independence on Sunday, February 17, 2008, the 194th independent state joined the world community. Most people in the West noted the event, vaguely recalled the 1998-99 Kosovo War and NATO bombing campaign, and smiled to themselves "good for them" as they went about their business. European Union member states, especially Britain and Germany, are preparing to recognize Kosovo's independence, as will the United States shortly thereafter. Russia and Serbia, however, are preparing a legal argument to the contrary.

Both countries want a hearing before the United Nations Security Council to make their case that Kosovo's independence move is a breach of international law. Until February 17, 2008, Kosovo was universally recoginized as an internal province of Serbia. Even the West reiterated this recognition as it let fly thousands of NATO sorties that eventually drove Serb troops back to their barracks after they had been unleashed by Slobodan Milosevic to carry out a dreadful ethnic cleansing campaign which drove 800,000 non-Serb people from their homes. Indeed, President Clinton noted that not only was Kosovo part of Serbia, but that he and NATO were acting militarily without approval from the Security Council on the basis of humanitarian intervention. Russia, of course, was prepared to veto any U.N. action protecting Kosovo from the clutches of their Serb cousins; thus, acting through the Security Council was not an option.

Arguments of illegality were also raised from Moscow at that time. Article 2(4) of the U.N. Charter forbids the use of military force without Security Council authorization if a state is not acting in self-defense. But after the Cold War, international humanitarian missions had come to be recognized as an acceptable by-pass to Security Council authorization for military intervention. Indeed, even then-Secretary General Kofi Annan acknowledged that to be the case. Technically the Russians were correct; morally, the world saw the situation differently. Milosevic and his troops were sent packing and the Russians quieted down. The United Nations blessed the successful operation retroactively, and a mixture of U.N., E.U. and NATO personnel occupied Kosovo as a protectorate for the next decade.

In the meantime, another small state, East Timor, slipped its cruel bonds and broke free of Indonesia. Protected by Australian troops, the East Timorese quickly set about setting up their government, rebuilding their infrastructure and aligning themselves to compete economically as other successful microstates in Asia and Europe have done. Kosovo, with a population of two million, certainly fits into the microstate category - but not more so that its newly independent neighbor to the West, Montenegro, which has eked out an economic niche in natural resource extraction and processing, shipping and tourism.

Serbia never agreed to ceding Kosovo, which was not a term of the 1999 cease-fire. Indeed, Serbs still regard Kosovo as the medieval birthplace of the Serb nation and continue to celebrate their "glorious defeat" by the Turks in the 1389 Battle of Kosovo (a romanticized Serb version of the fateful "Charge of the Light Brigade"). Yet by the time of Milosevic's ethnic cleansing campaign, 95% of Kosovo was populated not by Eastern Orthodox Serbs, but by Muslim ethnic Albanians. The 10,000 Kosovars who were killed during the Kosovo War were victims of Serb megalomania driven by Milosevic himself to recapture a time and place that history had long since passed.

Without such agreement, Russia contends, Kosovo cannot leave. Vladimir Putin has described Kosovo's secession as "immoral and illegal." It is unlikely that the Security Council will accept the Russian argument, which would be blocked by the U.S., Britain and France. And although neither the Russians nor Serbs will act militarily to reverse the secession, Russia can effectively block Kosovo's ascension to the United Nations as an independent state. Once again, Moscow may find itself technically correct, but on the wrong side of both history and humanity.

Former Russian defense minister Sergei Ivanov has characterized Kosovo's move as "opening a Pandora's box" that would encourage secessionist movements to seek their own independence. Of course, the Russians and Chinese are worried about Chechnya, Tibet and Taiwan, respectively. But Mr. Ivanov may have been obliquely referring to the ethnically Russian regions of Georgia and Moldova that are under Russian protection but may seek independence from those former Soviet republics. President Wilson's Secretary of State, Robert Lansing, would have agreed with Mr. Ivanov's assessment. When the president famously formulated his policy of self-determination in 1918 for people emerging from imperial rule in the aftermath of the First World War, Secretary Lansing remarked:

The more I think about the President's declaration as to the right of 'self- determination,' the more convinced I am of the danger of . . . such ideas . . . . What effect will it have on the Irish, the Indians, the Egyptians, and the nationalists among the Boers? Will it not breed discontent, disorder, and rebellion? Will not the Mohammedans of Syria and Palestine and possibly Morocco and Tripoli rely on it? How can it be harmonized with Zionism, to which the President is practically committed? The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. . . . What a calamity that the phrase was ever uttered! What misery it will cause!

Indeed. But doesn't freedom fundamentally include the freedom to govern yourselves? Good for them.

Michael J. Kelly is Professor of Law at Creighton University School of Law in Omaha, Nebraska. His latest article in this area is "Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver” ― Revolutionary International Legal Theory or Return to Rule by the Great Powers?", 10:2 UCLA Journal of International Law & Foreign Affairs (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960581