From the onset of the current crisis in Ukraine and the increased presence of Russian forces in Crimea I am having in mind the same word: Kosovo.
I was reading in today’s article from the Wall Street Journal, “A Defiant Putin Endorses Crimean Bid to Secede“, the following:
“The steps taken by the legitimate leadership of Crimea are based on the norms of international law and aim to ensure the legal interests of the population of the peninsula,” Mr. Putin said Sunday in the calls, according to a statement from the Kremlin.
I admit that when Kosovo unilaterally declared its independence in 2008 I did not follow in detail the case, other than knowing the basics and Spain’s opposition to it. It was only last year that I got to know a bit more the details of the case due to the fact that my sister Beatriz, pursuing a Masters programme on International Security and Law at the University of Southern Denmark, wrote a paper about it and asked her brothers to review it.
I am sure that I miss many of the nuances of the case, but my feeling is that the way that case was handled is backfiring at the moment. When I read Putin’s declaration, “based on the norms of international law and aim to ensure the legal interests of the population of the peninsula“, I see some of the details I will try to summarize below.
A rather complete article about the case can be found here in the Wikipedia.
Let’s start from the beginning. In 1999 and in view of the crisis going on for already 2 years in Kosovo, “Determined to resolve the grave humanitarian situation in Kosovo, Federal Republic of Yugoslavia, and to provide for the safe and free return of all refugees and displaced persons to their homes […]”, the United Nations Security Council adopted the Resolution 1244 (1999) [PDF 24KB, 8 pages]. I invite you to go through it. Here I recall some passages to relate it to the current situation in Crimea:
Reaffirming the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia […]
Reaffirming the call in previous resolutions for substantial autonomy and meaningful self-administration for Kosovo […]
(e) Facilitating a political process designed to determine Kosovo’s future status, taking into account the Rambouillet accords (S/1999/648);
(f) In a final stage, overseeing the transfer of authority from Kosovo’s provisional institutions to institutions established under a political settlement; […]
[excerpts from United Nations Security Council Resolution 1244 (1999), PDF 24KB]
On the reference to the Rambouillet accords (S/1999/648):
3. The Federal Republic of Yugoslavia has competence in Kosovo over the following areas, except as specified elsewhere in this Agreement: (a) territorial integrity, […]
[from page 10. Rambouillet Accords (S/1999/648), PDF 3.4MB, 86 pages]
Fast forwarding 7 years (from the Wikipedia):
International negotiations began in 2006 to determine the final status of Kosovo, as envisaged under UN Security Council Resolution 1244 which ended the Kosovo conflict of 1999. Serbia’s continued sovereignty over Kosovo was recognised internationally. The vast majority of the province’s population sought independence.
Fast forwarding 2 more years (from the Wikipedia):
The 2008 Kosovo declaration of independence was adopted on 17 February 2008 by the Assembly of Kosovo.
At that point Serbia requested the United Nations General Assembly to seek an opinion from the International Court of Justice (ICJ) on the case, obviously thinking that the ICJ would rule against the declaration of independence. The resolution was passed with 77 countries voting in favor (including Russia, Brazil, India, China, Norway, Spain, Indonesia, Mexico, South Africa…), 6 against (including United States, Albania and some islands from the Pacific ocean) and 74 countries abstaining (including most of Western Europe, Canada, Japan…).
The article of the Wikipedia on the case includes some of the points raised by each country. I find it interesting to bring forward the points from:
The United States invites the International Court of Justice to leave the declaration of independence intact as an expression of the will of the people of Kosovo, either by refusing to comment on its legality, or by determining that the international law does not prohibit declarations of independence. The declaration of independence did not violate any principle of territorial integrity because under international law, only states must comply with this principle, and not internal entities. […]
- General international law prevents Kosovo from declaring independence, bearing in mind that the people of Kosovo do not enjoy a right to self-determination.
- Russia rejects claims coming from those countries who support the unilateral declaration that international law “does not regulate independence declarations”, and reminds that the UN Security Council declared Northern Cyprus and Rhodesia’s independence to be illegal, since secession is forbidden outside the colonial context. […]
- Resolution 1244 cannot be overturned by a decision of UN secretary-general’s envoy Martti Ahtisaari to end the negotiations and recommend independence as the only solution. Quoting the words of Kosovo Albanian representative Skënder Hyseni, who said that the negotiations were led on “whether or not Serbia will accept Kosovo’s independence”, Gevorgian said that Ahtisaari’s failure does not mean that the process has been concluded.
- We often hear that international law is no law, that it does not apply to precedents, and that power is the law. This case is a chance to demonstrate that international law is in effect.
As requested, the International Court of Justice gave its advisory opinion on the case [PDF 190 KB, 31 pages], and found that:
Finds that it has jurisdiction to give the advisory opinion requested;
(2) By nine votes to five,
Decides to comply with the request for an advisory opinion;
(3) By ten votes to four,
Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.
… to the dismal of Serbia, Russia and others (1). I strongly recommend reading, or skimming through, the summary of the advisory opinion.
While reading the article prepared by my sister, I must confess that the (dissenting) opinion that I sided the most with was from Judge Koroma (2). You may find it here [PDF 139KB, 22 pages]. I especially enjoyed this paragraph:
19. In addition to resolution 1244 (1999), the Court has considered whether the unilateral declaration of independence has violated certain derivative law promulgated pursuant to it, notably the Constitutional Framework and other UNMIK regulations. It concludes that the declaration of independence did not violate the Constitutional Framework because its authors were not the Provisional Institutions of Self-Government of Kosovo and thus not bound by that Framework. The jurisprudence of the Court is clear that if an organ which has been attributed a limited number of competences transgresses those competences, its acts would be ultra vires […]. However, the majority opinion avoids this result by a kind of judicial sleight-of-hand, reaching a hasty conclusion that the “authors” of the unilateral declaration of independence were not acting as the Provisional Institutions of Self-Government of Kosovo but rather as the direct representatives of the Kosovo people and were thus not subject to the Constitutional Framework and UNMIK regulations. That conclusion simply cannot be correct, since the unilateral declaration of independence was adopted in the context of resolution 1244 (1999) and the Court has acknowledged that the question posed by the General Assembly is a legal question and that resolution 1244 (1999) is the lex specialis and applicable in this case.
I love that expression, “sleight-of-hand”.
I also fail to see how if the resolution 1244 (and the Rambouillet Accords), recognized the sovereignty of Serbia over Kosovo and called for an agreed future status, the unilateral declaration of independence taken by an Assembly created by the Provisional Institutions of Self-Government of Kosovo which was a result of resolution 1244 can suddenly be considered as not acting as the Provisional Institutions of Self-Government of Kosovo and not subject to the Constitutional Framework and UNMIK regulations.
We may call Putin whatever words, we may find him opportunistic, etc., but when Russia stated before the UN General Assembly in 2009 “We often hear that international law is no law, that it does not apply to precedents, and that power is the law. This case is a chance to demonstrate that international law is in effect”, and saw how the ICJ opined afterwards, it can only be taken as a logic conclusion that now Russia finds “The steps taken by the legitimate leadership of Crimea are based on the norms of international law and aim to ensure the legal interests of the population of the peninsula”.
Some times politics and international law can get really entertaining.
You reap what you sow.
(1) Kosovo has been recognised to date by 108 out of 193 (56%) United Nations member states, though not including Brazil, India, China, Russia, Argentina, Iran, Israel, Mexico, South Africa, Spain, etc.
(2) To make the riddle even more tricky: Judge Koroma, a natural from Sierra Leone, studied law at the Kiev State University… I would love to hear his opinion today on the case.
3 responses to “Implications of the independence of Kosovo in the case of Crimea”
One difference is that the revolutionary regime in Kiev had already introduced a breach in the Constitutional order, by their removal of the President by threat of force and without the Constitutional process and mandated super majority for impeachment. A breach they followed with subsidiary acts tainted by illegitimacy, such as removing judges from the Constitutional Court… which basically removed the last remaining pillar of legitimacy of the Ukrainian Constitutional order.
In such a scenario where the legitimacy of the regime has itself been dissolved, the factions which seized power of the “center” just do not have unquestionable legitimacy to impose their power over the regions. When such a revolutionary breach has been opened, a revolutionary state of affairs becomes the ultimate fact, but the regions have just as much legitimacy to take the revolution in their own direction, as opposed to the preferences of the factions which seized the center power.
Despite the mainstream parties’ protestations that far-right nationalists were not a major part of the Maidan protests, they ended up dropping the EU-brokered agreement and all legal legitimacy, to opportunistically go along with the Right Sector marching to seize the government. That action followed secret UNauthorized negotiations with police explicitly ignoring the EU-brokered agreement, allowing them to seize power unimpeded.
The difference between the Crimea and Kosovo is too great to infer a correlation. The peoples of Kosovo did not secede to join another country or block. They seceded because the majority of the population was unable to determine their own future and lead lives the way they aspired to.
In the Crimea, a section of the province decided to swear allegiance to a foreign power – the only precedent is in Cyprus.
To cut through the Putin argument, answer this question: if Yanukovich remained in power, would Putin have done what he did?
I think he missed key part of Rambouillet agreement “final settlement of Kosovo will be based on the will of the people of Kosovo”