Creating and building a "state": international law and Kosovo.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 12:45 p.m., Friday, March 26, by its moderator, Lori Damrosch of Columbia Law School, who introduced the panelists: Steven Hill of the International Civilian Office/European Union Special Representative in Kosovo; Milena Sterio of Cleveland-Marshall College of Law; Paul Williams of American University Washington College of Law; and David Wippman of the University of Minnesota Law School. *

* Steven Hill and Paul Williams did not submit remarks for the Proceedings.

THE CASE OF KOSOVO: SELF-DETERMINATION, SECESSION, AND STATEHOOD UNDER INTERNATIONAL LAW

INTRODUCTION

On February 17, 2008, Kosovo unilaterally declared independence from its mother-state, Serbia. (1) Most western governments were quick to recognize Kosovo as a new state, despite strong Serbian protest and the potential precedential dangers that recognizing such separatism represents for minority movements across the planet. (2) The Kosovar separation from Serbia is unique in the history of international relations: it represents a secession, which is heavily discouraged under traditional international law; it was peaceful, which is typically not the case in state break-ups; and it was politically supported by the west, which is traditionally critical of separatist movements as they undermine state borders and world stability.

What is thus so unique and special about Kosovo that can explain its success at achieving full independence so quickly and so relatively easily?

SERBIA AND KOSOVO: A PECULIAR RELATIONSHIP

Kosovo has a peculiar relationship with Serbia. It is the cradle of the great Serbian medieval empire, and as such it holds tremendous symbolic value to the Serbs. It is a symbol of Serbian civilization and culture, a place as sacred as Jerusalem is to Jews and Christians, and as Mecca is to Muslims.

Kosovo today, however, can only hold symbolic historical value for Serbia. Ethnically, it is predominantly Albanian, and the remaining Serbian population lives isolated from the Albanian population, in the northern part of Kosovo, which is heavily guarded by international peacekeeping troops, as well as in Serbian enclaves in the south of Kosovo. Moreover, Kosovo remains extremely poor, as well as socially and culturally underdeveloped. Modes of traditional lifestyle are still respected throughout its villages, and even the justice system, until recent UN-imposed reforms, reflected a notion of medieval eye-for-an-eye justice. Only a small number of Serbs--mostly those left without other viable options--are interested in living in Kosovo.

Given these dire conditions, one must wonder why Serbia cares so much about Kosovo. If the Serbian claim to Kosovo is purely symbolic or historic, does this somehow justify the Kosovar decision to separate from Serbia, by undermining the legal bases upon which Serbia could still hold on to this disputed province?

Kosovo had been an autonomous province of Serbia, which was itself one of the six republics within the former Socialist Federal Republic of Yugoslavia ("SFRY"). (3) Under that status, until the late 1980s, Kosovo exercised important regional self-governance functions. (4) However, in response to ethnic Albanian separatist movements throughout Kosovo, staged by guerilla-like paramilitary groups, the Serbian leadership undertook draconian measures in the late 1980s to curb the upheaval. Kosovo's autonomous province status was removed, and the Albanian population was deprived of important civil and political rights. (5)

In 1999, when former Serbian president Slobodan Milosevic engaged in a brutal campaign of oppression--once again in response to ethnic upheavals in Kosovo staged by the Kosovo Liberation Army ("KLA"), a separatist movement operating in Kosovo--the international community responded with force. After Serbia refused to agree to the terms of an agreement negotiated under international supervision in Rambouillet, France, North Atlantic Treaty Organization ("NATO") countries launched a series of air strikes on the territory of Serbia, which ultimately forced Milosevic to withdraw his forces from Kosovo. (6) Under the terms of the proposed Rambouillet Peace Agreement and subsequently, under United Nations Security Council Resolution 1244, Kosovo was to be administered by a UN provisional authority, the UN Mission in Kosovo ("UNMIK"). Kosovo's safety was to be guarded by a NATO-led military force, KFOR, and subsequent negotiations were to take place in the near future to decide the fate of the province. (7)

After Serbia's President Milosevic was ousted from power in 2001, Serbia turned toward the west. It became clear that in order to join western Europe--and possibly become a member of the European Union--Serbia had to sacrifice Kosovo, or at least refrain from using force in order to prevent it from breaking off. The relevant players, including the Serbian leadership, the Kosovar representatives, and UN and EU representatives, negotiated several times, but because of strong differences about the future of Kosovo, they were never able to reach consensus.

On February 17, 2008, the Kosovar Parliament, backed by powerful world countries like the United States, the United Kingdom, and France, voted for a declaration of independence. (8) In the few days following the Kosovar declaration of independence, the United States, as well as about twenty European Union countries, formally recognized Kosovo as a new state. (9)

APPLICATION OF INTERNATIONAL LAW TO Kosovo

In order to assess the legal validity of the Kosovar declaration of independence, I will examine two core issues--secession and statehood--under international law as it applies to Kosovo.

Secession

The core legal issue relating to the Kosovar declaration of independence is whether Kosovo has the right to secede from Serbia under international law. Various precedents establish that a "people" has a right to so-called external self-determination only if its rights to internal self-determination are not being fulfilled by its central government. (10) In the case of Kosovo, it is certainly true that Kosovar Albanians are a "people"; they share a common ethnicity, culture, language, religion, and social values that distinguish them clearly from the Serbs. Moreover, it is clear that their rights to internal self-determination had not been respected by the Milosevic-led Serbia. Yet it is also clear that their rights to internal self-determination were respected in the pre-Milosevic era. (11) Finally, it is possible that following NATO's intervention in Serbia and the ousting of the Milosevic regime, the new, more democratically inclined government of Serbia would respect the Kosovar rights to internal self-determination. Thus, while it is certain that the Kosovars' right to internal...

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