Six years ago, on March 26, 2008, I wrote the following essay for Business Recorder, Pakistan's premier financial daily. Crimea declared independence from Ukraine. The West denounces the secession of Crimea from Ukraine as illegal under both international law and Ukraine's consitution. Is that so? The same West supported Kosovo's independence from Serbia and recognized Kosovo six years ago. Why was it all right six years ago for Kosovo and not right at all for Crimea?
Situations in Crimea are in flux and what actually happened in Kiev is not clear. We are dealing with two contradictory international law principles. the right to self-determination of Crimea and the territorial integrity of Ukraine. The same questions are now asked again, and I hope you will share the concerns exxpressed below.
Kosovo's self-determination vs Serbia's territorial integrity
Current events unfolding in the jubilant celebration of the independence of Kosovo and the violent denunciation of secession of Kosovo from Serbia present a classic dilemma of the application of law.
A choice has to be made between the competing and conflicting values embedded in a complementarity in principle: the right to self-determination of peoples and the preservation of the territorial integrity and political independence of states. Both principles are enshrined in the Charter of the United Nations.
Kosovo, to be viable and legitimate under international law, must be "recognised" as a new state by the rest of the world community. On March 19, 2008 Canada and Japan joined, along with Hungary, Bulgaria and Croatia, a steadily growing number of governments that already recognized Kosovo. Serbia in turn recalled its ambassadors from Ottawa and Tokyo immediately as it did to all other states that had recognized Kosovo. The instance of recognition is brutally a zero-sum game: Kosovo gains; Serbia loses.
One can appreciate effects of recognition or non-recognition even at a personal level: in the classroom you raise your hand to answer the teacher's question. The teacher does not recognise you even though he/she is aware that your hand is raised. You lose an opportunity to present your views in class or you lose face if the teacher never calls on you.
Recognition is not a single act but a continuous response by officials as well as by private actors, to claims made by aspiring elites and their adversaries in different situations and with different power bases at their disposal. Recognition is a response to changes in who are new decision-makers in government, in what perspectives they have in terms of demands, expectations and identification, in how the situation of interaction develops, in how the allocation of authority and controlling bases of power is made, in how the modality of social strategies is fashioned, and what kind of various outcomes are expected.
Law is a process of decision. A decision is a choice made in response to competing claims in conformity with the expectations of authority of community members as to who should make decisions, for what purposes and by what criteria and under what procedures decisions should be made. It is a process as we are interested in decisions, the consequences of the making and applying of rules for human beings. Recognition is an instrument of public order; it must conform to the major thrusts of contemporary international law in terms of substantive goals and procedural principles.
A doctrine of non-recognition has proven to be an effective instrument in denying benefits to claimants of the unlawful declaration of independence: the creation of Manchukuo in 1931, the establishment of the clientele State of the Katanga in 1956, the unilateral declaration of independence by Southern Rhodesia in 1965, the continued presence of South Africa in Namibia in 1971, were all denied recognition by the world community.
While the United States, the United Kingdom, and several other states, promptly recognised Kosovo's right to self-determination, Russia and China are adamantly opposed to Kosovo's independence as they consider Kosovo the integral part of the territory of Serbia. Spain has joined the opposition camp. All of them have the domestic problem of ethnic groups seeking their own separate identity with a territorial base. From their perspectives, any attempt by Kosovo to secede from Serbia is to violate the latter's territorial sovereignty.
In 1989, Yugoslavia was a federal state consisting of Bosnia-Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. In the wake of the Yugoslav wars of 1990s, by the end of 1999 only two republics, Serbia and Montenegro remained. The disintegration of Yugoslavia brought about the Republic of Slovenia in June 1991; the Republic of Macedonia in September 1991; the Republic of Croatia in October 1991; Bosnia-Herzegovina in March 1992. Montenegro eventually declared independence in June 2006. Serbia became the Republic of Serbia in June 2006. They were all recognised and some of them are waiting for membership in the EU and Nato. Kosovo is the final seal to the disintegration of Yugoslavia.
Kosovo Albanians are seceding from Serbia. Recognition Kosovo is seeking from the world community is not the same as that given to the independence of former colonies such as Kenya from the UK, the Congo from Belgium or Indonesia from the Netherlands. It involves not a colonial overseas possession, but the secession of part of the territory of the extant sovereign state. Historically, only a few territories managed to become independent: Bangladesh (East Pakistan) from Pakistan, Eritrea from Ethiopia, and East Timor from Indonesia in recent history; however, tragic and sorrowful tales abound in Biafra, Katanga and the southern Sudan.
There are still other instances of on-going aspirations for self-determination such as the Basques and the Catalans of Spain, the Kurds of Iraq and Turkey, Taiwan of China, the Chechnya of Russia, and so on. Thus, the independence of Kosovo has enormous implications for these aspirants; it worries the governments of those states whose "territorial integrity" is threatened. No wonder, how quickly Turkey acted in crossing the border to hunt for Kurdish rebels in northern Iraq soon after Kosovo declared independence.
The Universal Declaration of Human Rights is customary international law now, binding all subjects of international law. Article 3 of the Declaration provides, "Everyone has the right to life, liberty and security of person." Slovodan Milosevic's brutal subjugation of ethnic Albanians in his wild pursuit of greater Serbia destroyed these conditions for life, liberty and security of person for every Kosovo Albanian. In the 1998-99 war between Kosovo Albanians and Serbian troops, the world community did not respond to Serbia's widespread, horrific atrocities against ethnic Albanians; instead, the world sat idly by in misplaced deference to the sovereignty of a state and the principle of non-interference while thousands of Kosovo Albanians were slaughtered, maimed, and raped systematically by Serbian troops.
In contemporary international law, what counts is the sovereignty of people, as stated by the Universal Declaration of Human Rights that "[t]he will of the people shall be the basis of the authority of government." It entails the protection of and respect for the individual's freedom of choice, and "not a metaphysical abstraction called the state," in the words of Michael Reisman of Yale Law School. In the course of the 1998-99 war, Kosovo Albanians changed their minds about who can protect them. They chose not Serbians, but themselves. That is self-determination.
It is an obligation of the world community to support Kosovo Albanians' independence and to help protect their "right to life, liberty and security of person." That is how response to change in Kosovo should be made in the form of recognition.###