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).

...

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.