The Legal Status of Kosovo's Independence

My former professor at Georgetown University, Anthony Arend, has posted an excellent analysis of the legal status of Kosovo's recent declaration of independence. Here are some of the highlights:

I The Legal Framework

When discussing the question of secession, two basic legal principles are in tension: the right of states to maintain their territorial integrity and the right of peoples to self-determination. First, one of the cornerstones of the international legal order is the right of states to their territorial integrity, a right implied through out the United Nations Charter. Article 2 (4), for example, prohibits the threat or use of force against the "territorial integrity or political independence" of states. Second, another right-- explicitly recognized in the Charter-- is the right of self-determination of peoples. Under Article 1 (2) of the Charter, one of the purposes of the United Nations is "to develop friendly relations among nations [read, states] based on respect for the principle of equal rights and self-determination of peoples . . . ." (emphasis added).

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When does a people have the right to pursue self-determination through secession?

This is the thorny question. The Charter doesn't address the question, so we have to look to subsequent practice. In 1970, the United Nations General Assembly adopted the Declaration on Principles of Friendly Relations. This non-binding resolution had the following to say about the right to self-determination:

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. (emphasis added)

In practice, this resolution (read together with others) meant that colonies had the right to pursue independence immediately. And this proposition seemed to be widely accepted by the international community. It also seems to mean that groups under direct foreign domination or subjugation-- like the people of Kuwait after the Iraqi invasion in 1990-- would have the right to pursue independence. But what about non-colonies or not subjected people-- like the component parts of Yugoslavia?

The Secession of Quebec took up this question. After declaring that the right to secede existed with respect to colonies and peoples there were under alien subjugation, the court noted:

A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent "the whole people belonging to the territory without distinction of any kind" adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.

Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated.

But, once again, the court did not have to determine if there is such a right to secession:

While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination. Even assuming that the third circumstance is sufficient to create a right to unilateral secession under international law, the current Quebec context cannot be said to approach such a threshold.

The court explained that the people of Quebec were able to fully participate in the political, economic, and cultural life of Canada and could not possibly be thought to have been denied their right to self-determination internally. So, even if the law allowed for secession in this third case, the people of Quebec could not exercise that right because they were in no way being blocked from internal self-determination-- the required condition for possible secession.

So what the court leaves us with is the conclusion that secession might be lawful in "category three" cases.

II Applying the Law to Kosovo

Are the persons living in Kosovo a "people"?

As noted earlier, there is no precise defintion of people under international law. Instead, it seems to mean a group that preceives itself to be a people based on certain common characteristics. This defintion would seem to cover the Kosovars. An overwhelmingly ethnic Albanian, Muslim group, they seem to me to perceive themselves to have a common bond.

But do they have the right to secede?

As seen above, the law is a bit murky. There is no straight-forward rule that would indicate that secession is permissible in cases like Kosovo. Preserving the territorial integrity of states remains an extremely important legal principle. But even if we accept that secession is permissible in certain "category three" cases, it would have to be demonstrated that the Kosovars were being denied the right to internal self-determination within the Serbian regime. Is this the case?

This is an interesting question. It seems clear that before NATO and the UN became active in Kosovo in 1999, the people there were facing the potential of ethnic cleansing and were being denied their rights to be full citizens of the Yugoslav state. Since that time, Kosovo has been under the protection of the international community, as determined pursuant to UN Security Council Resolution 1244 and subsequent resolutions. Under this arrangement, Kosovo was to enjoy "substantial autonomy and meaningful self-administration." At the same time, Resolution 1244 reaffirmed "the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region." What this suggests to me is that the way in which the UN envisoned Kosovo exercising its right of internal self-determination was as a substantially autonomous region that remained part of the state of Serbia. So can Kosovo now lawfully secede?


III Conclusions

1. In the absence of UN authority in Kosovo, a strong case for secession could be made.

If the UN had not become engaged in the Kosovo conflict, it would seem to me that a strong argument could be made that the people of Kosovo were being denied their right of internal self-determination and thus would have the right to secession. But note: even here the law is unclear as to whether a people in "category three" would ever have a right of secession.

2. Because the UN Security Council has been seized of the matter, a strong case against secession can be made.

Given that the UN Security Council has affirmed the territorial integrity of Serbia and continued to work for an autonomous, but not independent, Kosovo, a very strong argument can be made that in the absence of any further Security Council action, Kosovo secession would be illegal. Why? First, the Security Council has the authority to issue binding resolutions in this area. And even though Resolution 1244 does not explicitly prohibit secession or prohibit states from recognizing secession (like Security Council Resolutions 216 and 217 in the case of Rhodesia's Unilateral Declaration of Independence in 1965), it nonetheless seems to set forth the framework for self-determination that does not include independence. Second, it seems that all the parties in the case were attempting to create an autonomous arrangement-- not complete integration in to the Serbian political structure-- so the logic of the Quebec case's understanding of internal self-determination would not quite seem on point. In the Kosovo case, internal self-determination would be achieved through autonomy within Serbia, not full participation in the overall political, economic, and cultural life of the Serbian state, as was the case of Quebec.

Good stuff.

The Fallout from the US Satellite Interception

The United States has apparently successfully intercepted a failing satellite using a missile fired from an Aegis-class cruiser. However, it's not clear that the benefits of the strike will be worth the likely fallout. Coming on the heels of a Chinese test of a dedicated anti-satellite weapon, pressure seems to be mounting towards a space-based arms race as countries race to develop ASAT and AASAT capabilities at the same time as they seek to protect their own satellites. According to Clay Moltz, a professor of nuclear and space policy at the Naval Postgraduate School in California, "[the destruction of the satellite] solved a short-term problem, but it may cause us long-term headaches in terms of emerging test programs in other countries.”

This is a bad situation for the United States. The US is far more advanced in its satellite technology and capabilities than any other country. And while satellites are fairly expensive and sophisticated, it doesn't take nearly as much effort or sophistication to shoot them down. If American dominance in space is threatened, American dominance in many other fields is threatened as well. From my previous post on the January 2007 Chinese ASAT test:

First, from a national security perspective, a good deal of the American dominance in combat comes from its huge advantages in information -- reconnaissance, communications, imaging, GPS targeting and navigation, and so on -- which relies on satellites. An early strike on those space-based assets could blind the US military and level the playing field. True, the US has better weapons platforms and better trained soldiers, but without satellites, those advantages get mitigated.

Second, from a more global perspective, there is so much dual-use technology sharing between the military and the wider public that satellites, even military ones, are rarely purely military targets. GPS navigation, cell phones, weather imaging...all of these technologies rely on satellites that would be targeted in any preemptive military strike. Extending war into space could have dire consequences not just for the US military, but for the economies and civilian populations the world over.

The US needs to move quickly to derail the emerging space arms race. The US stands to lose far more than does any other actor, including China. There may have been pressing reasons to use a missile to destroy this particular falling satellite (although the only one that is credible is that the US feared that enough of the satellite would survive re-entry and impact as to pose a security threat if another country was able to retrieve it), this incident must not be allowed to set a precedent or spur spiral pressures for an arms race. The US has long opposed a global treaty banning ASAT weapons developments, largely for concerns over verification. Just last week, China and Russia proposed an international treaty banning ASATs. The US needs to work to figure out a mechanism by which it can confidently create a regime ensuring that space will remain peaceful and available for use by Americans and the world alike.

Another Sign of Progress in Iraq

Following on the heels of last month's passage of a de-Baathification bill, Iraq has taken another small step forward towards stability. Yesterday, the Iraqi parliament passed three vital measures: the 2008 budget, a law defining the scope of the powers of the Iraqi provinces, and an amnesty for thousands of jailed Iraqis, which also happens to be one of the benchmarks identified by the Bush Administration. The wrangling over these issues had been extremely acrimonious, and at times threatened to bring down the fragile and divided government.

While each of the measures is important in its own right, what is perhaps even more important is the way in which they were passed. Each law appealed to one of Iraq's primary ethnic groups. The budget was mainly supported by the Kurds who wanted to protect the 17% share of Iraqi national revenue that they had been receiving, the Shiites supported the definition of provincial powers to ensure that the central government will not be given too much power, and the Sunnis backed the amnesty, as the vast majority of the 26,000 prisoners in Iraqi jails are Sunnis. No side could get its preferred law passed against the opposition of the other two, and individually it appeared as if all the measures would fail. However, by working together and bundling the measures into one package deal, each party could receive its preferred measure in exchange for supporting the measures desired by the other party.

The importance of such a development can not be understated. The only chance Iraq has for stability and reconciliation is if the major political, religious, and ethnic groups believe that their futures can be protected and advanced through political participation and compromise. A cooperative deal such as this goes a long way to demonstrating that Sunnis, Kurds, and Shiites can work together to achieve mutual interests, and that political power need not be a zero-sum game.

Again, as with the de-Baathification deal this is but a small success, and it no way indicates that Iraq has been "won". But again, the accumulation of small steps in the right direction can eventually produce the political climate necessary for success. It is certainly a positive sign that there are more and more examples of positive moves.

A Test For China

For the first time, the World Trade Organization has issued a major ruling against China. According to the AP report:

The WTO found that China was breaking trade rules by taxing imports of auto parts at the same rate as foreign-made finished cars, according to a copy of the ruling's conclusions obtained by The Associated Press.

In the sweeping decision, the three-member WTO panel found against China on nearly every point of contention with the U.S., the 27-nation EU and Canada.

The three trade powers argued that the tariff was discouraging automakers from using imported car parts for the vehicles they assemble in China. As a result, car parts companies had an incentive to shift production to China, costing Americans, Canadians and Europeans their jobs, they said.

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China, which will still be able to appeal, claims the tariffs are intended to stop whole cars being imported in large chunks, allowing companies to avoid the higher tariff rates for finished cars. It argues that all measures are fully consistent with WTO rules and do not discriminate against foreign auto parts.

But the U.S. and the EU say that China promised not to treat parts as whole cars when it joined the WTO in 2001.

China's accession to the WTO was a vital component of the US strategy of engagement, in which economic relations with China are pursued as part of a two-pronged strategy. The first goal of economic development is to transform China's domestic economy into a middle-class, capitalist-style market which, it is argued, will in turn create domestic pressure for political reform. The second strategy of engagement is to make China increasingly dependent on the international community so that adherence to the status quo is more valuable than challenging it.

The WTO is an excellent forum for the latter strategy, as it requires countries to alter their domestic laws and economic rules to comply with international free trade requirements. As protection of domestic status is, more or less, the raison d'etre of national governments, agreeing to alter those arrangements for the sake of international free trade is a powerful signal of adherence to the status quo. How China reacts to the first negative ruling will be a meaningful statement of how China understands its own preferences vis-a-vis the status quo and the international system. If it agrees to comply with the ruling, which will certainly harm a sector of China's domestic economy that it desires to protect, it will be a strong sign that engagement is working.

The Threat of Nuclear Terrorism

In a commentary in today's Chicago Tribune, Steve Chapman has a piece examining "The Implausibility of Nuclear Terrorism," in which he writes:

Why are we worried [about the possibility of nuclear terrorism]? Bomb designs can be found on the Internet. Fissile material may be smuggled out of Russia. Iran, a longtime sponsor of terrorist groups, is trying to acquire nuclear weapons. A layperson may figure it's only a matter of time before the unimaginable comes to pass. Harvard's Graham Allison, in his book "Nuclear Terrorism: The Ultimate Preventable Catastrophe," concludes, "On the current course, nuclear terrorism is inevitable."

The events required to make that happen include a multitude of herculean tasks. First, a terrorist group has to get a bomb or fissile material, perhaps from Russia's inventory of decommissioned warheads. If that were easy, one would have already gone missing.

Besides, those devices are probably no longer a danger, since weapons that are not scrupulously maintained (as those have not been) quickly become what one expert calls "radioactive scrap metal." If terrorists were able to steal a Pakistani bomb, they would still have to defeat the arming codes and other safeguards designed to prevent unauthorized use. As for Iran, no nuclear state has ever given a bomb to an ally -- for reasons even the Iranians can grasp. Stealing some 100 pounds of bomb fuel would require help from rogue individuals inside some government who are prepared to jeopardize their own lives. The terrorists, notes Mueller, would then have to spirit it "hundreds of miles out of the country over unfamiliar terrain, and probably while being pursued by security forces."

Then comes the task of building a bomb. It's not something you can gin up with spare parts and power tools in your garage. It requires millions of dollars, a safe haven and advanced equipment -- plus people with specialized skills, lots of time and a willingness to die for the cause. And if Al Qaeda could make a prototype, another obstacle would emerge: There is no guarantee it would work, and there is no way to test it.

Assuming the jihadists vault over those Himalayas, they would have to deliver the weapon onto American soil. Sure, drug smugglers bring in contraband all the time -- but seeking their help would confront the plotters with possible exposure or extortion. This, like every other step in the entire process, means expanding the circle of people who know what's going on, multiplying the chance someone will blab, back out or screw up.

...If Osama bin Laden embarks on the project, he has only a minuscule chance of seeing it bear fruit. Given the formidable odds, he probably won't bother. None of this means we should stop trying to minimize the risk by securing nuclear stockpiles, monitoring terrorist communications and improving port screening. But it offers good reason to think that in this war, it appears, the worst eventuality is one that will never happen.

All of this is very likely true. Much of Chapman's piece is based on a talk Professor John Mueller of Ohio State University gave at the University of Chicago last month entitled "The Atomic Terrorist: Assessing the Likelihood" that argues "the likelihood that a terrorist group will come up with an atomic bomb seems to be vanishingly small." Mueller is also the author of the book Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats and Why We Believe Them. Mueller's basic argument is that the threat of terrorism, especially when compared to other threats, risks, or priorities is exceedingly small and while basic precautions should be taken, much of the response in the War on Terror is overblown.

I agree with much of Mueller's argument, in theory. But, as I and Homer Simpson are fond of saying, in theory, communism works. Even if it is objectively demonstrable that the threat of terrorism, and nuclear terrorism in particular, is exceedingly small, that doesn't mean that the government can react in ways other than the ways it has.

Government, and democratic government in particular, is an inherently reactionary force that prefers not to address problems so long as they remain mere possibilities in the future. However, once an event happens, like 9/11, the government is on notice, so to speak, and cannot allow a similar event to happen again. Thus, overreaction occurs, as the government races to paper over obvious flaws and policy failures and and attempts to identify any similar potential problems in the future. And so we get the absurd prohibition on liquids aboard airplanes.

Now that 9/11 put terrorism on the radar screen in an emphatic manner, the government cannot be seen to be ignoring any future terrorist possibilities, no matter how small. Combine that with an over-arching paternalism that infects government at all levels, and it should come as no surprise that the government is likely to spend time and resources worrying about a threat that very well may have an infinitesimal chance of occurrence. Let's also not forget that those in favor of governmental action to deal with the threat of global warming advocate for the application of the precautionary principle, which argues that in the face of uncertainty about events with the potential to cause massive damage to humans or the environment, protective actions should be taken. A nuclear attack on an US city certainly meets that threshold level.

It very well be true that the threat of terrorism is small, and that the threat of nuclear terrorism even smaller. But that doesn't mean that we should expect the government to take proportionate steps to deal with the threats.

Next Stop, Garbage Island!

Apparently, garbage island, the destination of the barge on which Homer Simpson lands while escaping from a proselytizing Ned Flanders, is real. The Independent has a report about a "plastic soup" of garbage in the Pacific that is twice the size of the continental United States. According to the report:

The vast expanse of debris – in effect the world's largest rubbish dump – is held in place by swirling underwater currents. This drifting "soup" stretches from about 500 nautical miles off the Californian coast, across the northern Pacific, past Hawaii and almost as far as Japan.

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The "soup" is actually two linked areas, either side of the islands of Hawaii, known as the Western and Eastern Pacific Garbage Patches. About one-fifth of the junk – which includes everything from footballs and kayaks to Lego blocks and carrier bags – is thrown off ships or oil platforms. The rest comes from land.

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Curtis Ebbesmeyer, an oceanographer and leading authority on flotsam, has tracked the build-up of plastics in the seas for more than 15 years and compares the trash vortex to a living entity: "It moves around like a big animal without a leash." When that animal comes close to land, as it does at the Hawaiian archipelago, the results are dramatic. "The garbage patch barfs, and you get a beach covered with this confetti of plastic," he added.

The majority of the "soup" appears to be plastic. Recently, there has been increasing movement in cities, localities, and even countries to move away from the use of plastics, particularly in grocery bags. One can only anticipate that the existence of 100 million tons of floating garbage covering thousands of miles of ocean will increase international pressure to reduce the amount of plastics waste produced. I would fully expect that the UN, or some other international environmental entity, will take this issue up in the near future.

Global Incident Map

A new resource has come to my attention and I wanted to mention it here. It's the Global Incident Map, and it's a fantastic tool for anyone studying terrorism in any form. The map displays icons representing various "global incidents" of actual terrorist attacks, suspicious events, and other relevant goings-on.

For example, looking at the US right now (9:48 AM, Tuesday, February 5, 2008) shows 19 incidents, ranging from unidentified white powder in an envelope in Virginia to a suspicious package found in San Jose to bomb threats in South Dakota. Pulling the map over to Africa, we see icons representing an attack on the Israeli embassy in Mauritania, the bombing of the Saudi embassy in Chad, and pirates seizing a Russian ship off the coast of Somalia. Pakistan shows a report from arrested al Qaeda militants that 600 suicide bombers are planning a major attack in Karachi, while in the Philippines, government soldiers clashed with Islamic rebels.

A fantastic tool for keeping track of terrorism, insurgencies, political violence, and suspicious acts around the world. Check it out.

NATO In Trouble

A group of former senior NATO military officials have issued a report warning that the military alliance is in trouble and in need of a massive overhaul if it is to retain its usefulness and relevance. The authors of the report -- Gen. John Shalikashvili, former chairman of the United States Joint Chiefs of Staff and a former NATO commander; Adm. Jacques Lanxade, former chief of the Defense Staff of France, Gen. Klaus Naumann, former chief of the Defense Staff of Germany; Field Marshal Peter Inge, former chief of the Defense Staff of Britain; and Gen. Henk van den Breemen, former chief of the Defense Staff of the Netherlands -- assert that NATO is paralyzed by several key problems, including "cumbersome decision-making rules, inequitable financing arrangements and an inability to sustain long-term missions."

This is not the first warning of the problems facing NATO. Last month, US Secretary of Defense Robert Gates upset many key US allies and NATO members when he publicly stated that many of the military problems in Afghanistan were due to the inability of member forces to fight insurgency-style warfare. Eastern Afghanistan, which shares a border with Pakistan and is primarily patrolled by US forces has become more secure lately, while Taliban activity and violence levels have been rising in the southern regions, controlled by a force largely made up of British, Canadian and Dutch forces. More troops and better equipment have been sought to increase the military presence in Afghanistan, but NATO has had massive difficulties in meeting the demand.

In late 2006, NATO Secretary-General Jaap de Hoop Scheffer had to literally beg NATO members to provide 2,500 troops to meet the 31,000 troop goal (eventually, the UK, Canada, Poland, and Romania provided 2,000 of the requested 2,500). NATO lacks the airlift capability to deploy its force (although the alliance did agree in 2006 to purchase 3 badly needed C-17s). Only 6 of the 26 member countries spend the recommended 2% of GDP on defense, and many of the states impose caveats and restrictions on the soldiers they do deploy. For example, Germany imposed a prohibition on German troops conducting "extended patrols," or the restrictions that many states place on their soldiers serving in the more volatile regions.

Earlier this week, Canadian Prime Minister Stephen Harper threatened to pull the Canadian contingent out of Afghanistan if more NATO allies did not increase their presence. While Harper would like the Canadian forces to stay beyond their currently scheduled withdrawal date of February 2009, he "accepted the recommendations of an independent panel which last week urged Canada to end its mission in the southern city of Kandahar unless NATO provided an extra 1,000 troops as well as helicopters and aerial reconnaissance vehicles." According to the report, "Canada is exasperated at the refusal of many other NATO nations to commit more troops to Afghanistan, in particular to southern areas where the Taliban is strong."

All of this is exceedingly bad news. NATO is absolutely vital to US, European, and global security interests in many fronts. For the US, NATO provides multinational support and burden-sharing, both of which are particularly important in the face of international disapproval of the invasion of Iraq and the strain being placed on the US military as a result. For the Europeans, NATO is, almost literally, the only way in which they can remain military relevant in the age of total US military dominance. If NATO is incapable of carrying out military operations and its credibility erodes, all the more burden will fall on the US to provide security and policing for the world, a development that would only stress US capabilities and reputation even more. For the world, NATO provides a credible military response to problems with which the UN can not, will not, and should not deal.

Despite the predictions of many realists, NATO did not disintegrate with the end of the Cold War. Rather, it has become a vital tool for democratizing the East European states, and has allowed the US multilateral approval for military actions (Kosovo). NATO must not be allowed to collapse, or even lose its credibility as a result of failures in Afghanistan. The US must put massive pressure on France, Germany, Italy, and Spain, just to name a few, to increase their commitments to their own militaries and to NATO as well. NATO's defense spending requirement must become mandatory, states must agree to give up the right to place restrictions on the operations of their troops assigned to NATO command, and procurement and spending must be driven by military, not political need.

The US, Europe, and the world need NATO. Countries must not be allowed to free-ride on the US. No one is asking them to develop a massive military presence like that of the US; but it shouldn't be too much to ask powerful states like France and Germany to be able to deploy 5,000 well-equipped and well-trained troops to fight al Qaeda and the Taliban and to try to build democracy in a part of the world that is more important than ever.