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Volume 3

December 2007

Number 1

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
Vancouver, Canada

Balkanization Complete? Kosovo and Statehood

by Ian Townsend-Gault

On August 15 2007, the Brussels-based International Crisis Group (ICG) issued a Report on the current situation in Kosovo (www.crisisgroup.org). Based on research in Belgrade and Pristina, the Report concluded that, frustrated by the lack of progress on formal separation from Serbia, Kosovo Albanian leaders are will issue a unilateral declaration of independence. This might provoke military action on the part of Serbia, and a conflict would ensue which has the potential to very well destabilise neighbouring countries - a development neither they now their neighbours need. An enormous flood of refugees would be on the move, and the counties of the European Union would be their likely destination. The resulting breakdown in law and order would be much to the satisfaction of organised crime in the Balkans, which is already responsible for a significant percentage not only of the illicit narcotics selling on European streets, but also women and children trafficked into brothels in the member states.

the European Union had to take responsibility for bringing Kosovo to "supervised independence"

The ICG concluded that, because the Security Council of the United Nations will be unlikely to be able to do so (because of the threat of a Russian veto), the European Union had to take responsibility for bringing Kosovo to "supervised independence". Even though there were differences among the member states as regards this issue, a united and unified front was essential based on facts which, though unpalatable, had to be faced. An EU failure would bode ill for the development of common foreign and security policies.

This recommendation is not without its difficulties and challenges, but is presented as the least worst option of the three available. The next worst, maintaining the status quo with Kosovo under UN supervision, is not acceptable to the Kosovo Albanians, and merely postpones the evil day in any case. Infinitely worse as far as the majority of the peoples of the territory are concerned, though once favoured by former Prime Minister Tony Blair and former President Bill Clinton. The third option calls for Kosovo to remain an integral part of Serbia, under terms and conditions to be determined. This of course would be Serbia's preference: not surprisingly, Belgrade appears to be implacably hostile to the idea of independence for what it regards as its dissident province.

No doubt the ICG is right to call for an unstinting effort by the EU to remain effective in this situation. No doubt what it claims as the "least worst option" can be seen by many as the only viable way forward. But international lawyers surely cannot gloss over the legal issues arising here. Put simply, the ICG Report is calling for international or regional action to divest a sovereign state of 15% of its territory, and confer statehood on the latter by recognising it as independent. By what right can the UN, or the EU, or some or all of the "quintet" contact states (the US, UK, Italy, France, Russia) bring this about? And what are the consequences, legal and political, if they succeed? Before examining this question, we should perhaps review the sequence of events that may be bringing the Balkans back to the brink of armed conflict.

How Did We Get To Where We Are Now?
Complex chronologies such as the recent history of Serbia and Kosovo soon fade in the popular memory of those outside the region, and a heavy overlay of myth and denial tends to cloud events in the minds of participants and observers alike - not that either is unimportant. What people think or say happened in a given situation is often as relevant as what actually did. Neither should be ignored, which is not to say that misperceptions should be left alone. Let me illustrate this point by reference to my endeavours to encourage inter-jurisdictional cooperation in the South China Sea. The sticking point here is the seemingly intractable conflict concerning sovereignty over the Spratly Islands. The only significance attached to these features is that they might be the means whereby rights to untold offshore oil wealth may be gained. The literature abounds with reference to the "oil-rich Spratlys". But there is no evidence whatever that oil and gas occurs in commercial quantities in the Spratly area. There has been next to no exploration there. The possibility of hydrocarbons was once suggested, but the qualifications attached to this speculative view disappeared rather quickly when the always-attractive idea of vast mineral riches was launched. Once that idea was unleashed, it would always be very hard to recall it. And so, regional states evolved policies to strengthen their claims to ocean areas in which they would not otherwise be interested, on the basis on very little or no evidence. The power of hype, perhaps?

Kosovo (once referred to as Kosovo-Metohija, or Kosmet) occupies a very special place in the Serbian psyche. Ethnic (Muslim) Albanians and Serbs seem to have co-existed there since the 8th century. It was at the very centre of the Serbian empire: the monastery of St. Patrijarsija was the seat of the Serbian patriarchs since 1346, the monastery of Decani (like St. Patrijarsija, actually in Metohija) has frescoes from the 13th century, and that of Gracanica from the 14th (for more information and fascinating images, not to mention a sense of the importance of religious sites in Kosovo, see http://www.kosovo.net, a website which declares that it has the blessing of the Serbian Orthodox Bishop of Raska and Prizren). But the 14th century saw the region finally conquered by the Ottoman Turks (the modern word "Balkans" derives from the Turkish word for mountains). One event looms especially large - the Battle of Kosovo Polje of 1389. This was a crushing Serb defeat, but on the eve of battle, Czar Lazar and his nobles decided to adhere to their Christian beliefs, and not under any circumstances submit to the invader (e.g. by converting to Islam). The power of the subsequent transformation of this event into myth radiates through contemporary Serb attitudes towards Kosovo. The strength of the influence of this history can be seen in epic poetry and heroic paintings, some of which have been published on websites such as the one supported by the Orthodox Church - see especially www.kosovo.net/kosbitka.html.

Until Serbia regained its independence from the Ottoman Empire in 1878 (one of the achievements of the Congress of Berlin, which featured the not-inconsiderable talents of Benjamin Disraeli and Otto Bismarck), the history of the country is a fascinating one of resistance to the conqueror, sometimes assisted (and sometimes definitely not) by the Russian and later Austro-Hungarian Empires. In 1774, the Ottomans ceded to Russia the right to espouse Orthodox or Slav causes arising anywhere in their empire, thus giving the country a role in Serb affairs which has lasted to this day. Serbia did not regain sovereignty over Kosovo until 1913, by which time centuries of Ottoman domination had resulted in the spread of Islam there, and also in what was to become Albania, Bulgaria, and to some extent Macedonia. The demographics of Kosovo had altered dramatically, and ethnic Serbs were very much a minority.

In 1918, Serbia joined (and clearly assumed it would dominate) the Kingdom of the Serbs, Croats, and Slovenes, which was the prototype for modern Yugoslavia. The King of Serbia was made head of the new state. As Dr. Margaret MacMillan points out in Paris 1919 (published outside North America as The Peacemakers), her brilliant study of the Versailles Peace Conference and the fate of the decisions made there, the Serb army was by far the largest military force in the new state, and only too well aware of this. The Treaty of Versailles gave its blessing to the new Kingdom: the name Yugoslavia (land of the south Slavs) was adopted in 1929.

It does not seem to have fared especially well. In the mid-1930s, Dame Rebecca West toured extensively a country she described as being "down to its last vest button" after the publication of her monumental (1100pp+) Black Lamb, Grey Falcon, A Journey Through Yugoslavia, regarded by some as one of the supreme books of the 20th century (and one which this writer recommends without reservation as an intellectual, spiritual and emotional tour de force, apart from its insights into pre-war Europe).

Yugoslavia came under the influence of the Soviet Union after 1945, though Marshall Tito, its first president, showed an early and vigorous determination to chart his own course. In 1974, the constitution granted the demographically very much altered Kosovo a measure of autonomy, from which one might conclude that the territory was flexing its muscles. The move certainly seems to have caused some resentment in other parts of Serbia, as did the perception that Kosovo was exerting a disproportionate influence on the country. This was exploited during Tito's lifetime by one Slobodan Milosevic, then a senior party official. After Tito's death and Milosevic's rise to power in 1989, the autonomy was revoked and a campaign of harassment commenced. This inevitably led to growing Kosovar Albanian disenchantment with post-Tito Yugoslavia, which was apparently shared by many in Bosnia-Hercegovina, Croatia, Macedonia, and Slovenia. The collapse of the Soviet Union gave the leaders of these republics the opportunity they had been waiting for, and they declared their intention of quitting the federation. The Soviet Union itself was starting to come apart in eastern Europe and Central Asia, and this was a peaceful process, on the whole. Not so in Yugoslavia, where large parts of Bosnia and Croatia became battlegrounds as Serbs, Croats, and Muslims struggled for control. Macedonia and Slovenia escaped this turmoil mostly due to their relatively well assimilated mixture of different ethnicities (the latter joined the EU in 2004, and the Eurozone in 2007).

In Kosovo, peaceful protest at the removal of autonomy gave way to armed struggle in the mid-1990s when the Kosovo Liberation Army commenced attacks on Serb governmental targets. The result was an overwhelming deployment of Serb military might, and the start of a campaign of "ethnic cleansing".

The international community, possibly moved to take action having failed the people of Bosnian towns such as Srebrenica so disastrously, started a diplomatic engagement with Milosevic. There were demands for him to restrain his forces in Kosovo, whose activities had resulted in hundreds of thousands of refugees and thousands of deaths: another humanitarian disaster was underway. An international agreement was brokered at Rambouillet near Paris in February 1999 which made provision for "democratic self-government" within Kosovo while reaffirming the "territorial integrity of the Republic of Yugoslavia", as well as respect for human rights. It was signed by Milosevic for Yugoslavia, and also representatives of Serbia and Kosovo. In March, the Serbian parliament was sharply critical of the arrangement (though the full text had yet to be released), and this made it easier for Milosevic to distance himself from it: the campaign of harassment within Kosovo resumed. The result of what was seen as back-sliding was a NATO bombing campaign in March 1999 aimed at Serb infrastructure and military targets, after which Belgrade in effect capitulated. It should be noted that while humanitarian intervention was manifestly justified, the bombing campaign was not. The more proper action would have seen NATO troops deployed on the ground in Kosovo, but the United States in particular was reluctant to risk significant casualties after the UN's Somalia debacle - the so-called "Mogadishu factor".

In This Issue

Socrates and Irony
Professor Steve Wexler on Socrates and Irony

The International Failures in Somalia: UN and Arab League
Aweis Issa talks about the need for parity and action in Somalia when it comes to the UN and the Arab League.

Michael Vick and the Jena Six: Race and Punishment in the United States

Literary Contributions
Contributions from an International Selection of Writers

The United Nations took control of Kosovo in 1999, and remains there today - but this mandate will expire in January 2008. Many Serbs fled: the present population is estimated at 1.5 million Kosovo Albanians, and mere 100,000 Serbs who live in NATO-guarded enclaves. The UN initiated talks in 2005, and in February 2007, its envoy, former Finnish President Martti Ahtisaari, presented a plan for independence for Kosovo, accepted by the territory's leaders but rejected lut of hand by Belgrade. Discussions since then have gone nowhere, and hence the ICG's report, which appears as time is indeed running out on a number of fronts.

Legal Issues Arising From the ICG Recommendations
International law prescribes four qualifications for statehood: defined territory, fixed population, government, and capacity to enter into relations with other states. Of these, the last is absolutely key, and usually the most problematic. Taiwan, for example, meets the first three criteria, but not the fourth. The vast majority of the members of the international community do not "recognise" the island as a state. They do not accredit ambassadors to, nor accept such envoys from, Taipei. They do not sign treaties with its government. Taiwan is not entitled to be a member of the United Nations; it cannot sign, ratify, or accede to international conventions. At the time of writing, Timor Leste (formerly East Timor) is the newest member of the community of nations. It became a state not because of the result of the pro-independence referendum, or the decision by Indonesia to let it go, but through the process of formal recognition by other countries. In May 2006, Montenegro voted to separate from Serbia, but had to await recognition from the international community (it has since joined the UN in its own right). There are examples of non-recognition: Australia alone recognised the incorporation of East Timor, a former Portuguese colony, as part of Indonesia. The purported annexation therefore could not be considered legal so far as the international community was concerned.

Recognition has been described as a political act with legal consequences. It is up to each state to grant or withhold recognition using criteria each may determine for itself. There is no international "law" as such on the granting of recognition: emerging self-governing polities do not have a right to be recognised no matter how much popular support there is for independence. In this context, it should not be forgotten that in 1991, when it became clear that the break-up of the Soviet Union might have profound consequences for satellite states, the EU Foreign Ministers issued a Declaration on conditions that would have to be met by emerging sovereignties for the grant of recognition by the Union. This was one of the factors that led to a somewhat premature rush for statehood on the part of Bosnia and Croatia, thus precipitating the bloody conflict which stained the modern history of the Balkans and resulted in human rights abuses not seen in Europe since the Nazi era.

Some countries use recognition to signify approval of the emergence of a new entity, and non-recognition as disapprobation. The United States decided to "reward" democratic progress in Macedonia by agreeing to refer to it by that name, as opposed to "Former Yugoslav Republic of Macedonia", a move which was condemned by Athens, but Washington was completely within its rights. Other states are more pragmatic, and tend to accept a fait accompli (though not always enthusiastically): this is the political nature of the process. The legal consequences have to do with the immunities foreign states and members of its government enjoy in domestic courts, privileges which extend to their accredited diplomats and missions. And, of course, independent entities can apply to join international organisations, become party to treaties, and generally participate in the on-going inter-state discourse. For the Kosovo Albanians, the prospects include accelerated membership of the EU and NATO, but most importantly, the fact that Belgrade will have no say in how this land is governed.

So much for what is at stake for an independent Kosovo: the point to bear in mind is that states grant or withhold recognition at will. But what about the rights of Serbia? If the international community, or some part thereof, succeeds (in effect) in divesting Serbia of Kosovo, what right must they be presumed to be asserting in the process? This is not discussed in the ICG Report, which examines only the policy options open to the several players. The first question to ask is whether there need be any assertion of legal right at all. However, I find it inconceivable that an act as fundamental as divesting a sovereign state of territory which has indisputably formed part of its territory against its will is devoid of a legal dimension.

How could it be otherwise? So is this an application of the principle of self-determination (a much-abused term originally coined to refer to respecting the wishes of colonial peoples)? If so, are we to take it (as many separatist groups will) that it will apply elsewhere if separation or independence can be shown to have overwhelming popular support?

I doubt that this conclusion would find much favour internationally. The only rationale for carving Kosovo from Serbia would be that the actions of the Serb government and army were of such a heinous nature that Belgrade egregiously failed in its manifest duty to protect its citizens in the territory. It would be unreasonable, therefore, to expect the Kosovo Albanians to wish to continue to live under rulers who have failed them, and where lasting enmity between the two sides suggests an unhappy future if they were forced to do so.

Where Would An Independent Kosovo Leave Serbia?
The history of Serbia was turbulent long before the Ottoman conquest, and that event did nothing to promote peace in the centuries that followed (and it should not be forgotten than the single event that is commonly blamed for the outbreak of the First World War was the assassination of the Austrian Archduke Franz Ferdinand in Sarajevo by an anti-imperial (Bosnian) Serb). A quick review of their history suggests that the Serbs can be forgiven for not reposing total trust in other countries, even ostensibly close allies.

But since 1991, the record has been dismal. The other members of the former Yugoslav Federation, even Montenegro, have chosen to go their own way, which must be seen as a form of rejection. The worst (but by no means all) atrocities of the recent Balkans conflict have been laid at the door of Serb paramilitaries, and sometimes the Army also. Resolute denial of these events was at least dented when video footage of the cold-blooded murder of some Muslims by one of the most notorious paramilitary groups came to light. Milosevic and others have been surrendered to the International Tribunal for Former Yugoslavia in the Hague, but Serbia continues to attract opprobrium for failing to hand over Bosnian Serb leader Radavan Karadic and his military commander Ratko Mladic, who have more to answer for than any previous or current defendants. The country was subjected to a NATO bombing campaign of some ferocity, and thousands will bear the psychological scars of this assault for some time, maybe for ever. And now Kosovo, one of the holiest parts of the country, once centre of the Serbian Empire, is to be ripped from it.

Serbia and its people are already aggrieved, and Kosovo independence will be seen as a further insult. The only solution is dialogue with the European Union, and an attempt to place the country on track for membership, if that is what it desires. This will take time, but the EU has had much experience with assisting unpromising applicants with institutional and legal reforms, and the development of civil society. The primary beneficiaries of such assistance would be the long-suffering Serb people, whether EU membership was pursued or not. So far as access to holy sites in Kosovo is concerned, one of the benefits of EU membership is that even the most contentious borders tend to become irrelevant in time, as the people of Ireland can attest.

Is An Independent Kosovo Viable?
The question scarcely matters - independence is going to happen. Common sense would suggest remaining part of Serbia - on terms - but the time for this has passed (as was the case with Timor Leste. Moderate Timorese opinion agreed privately that some link with post-Suharto Indonesia would be highly beneficial, but again, too much blood had been spilled). Kosovo is larger than the smaller EU states (area 10,887 sq km or 4,203 sq mi area, with a total population estimated at 1.8 million), but landlocked, encircled by Montenegro, Albania, and Serbia), and far from prosperous, though fertile. The literature suggests that there are mineral resources which are largely untapped - the Romans once mined silver there. It has been suggested that more could be done to boost agricultural production. If the EU plays the role advocated by the ICG Report, it would be logical to expect continued involvement with the new state at least until the infrastructure of civil society and good governance has been built up, with eventual membership in time. It would not be the only part of former Yugoslavia to receive assistance with governance: Bosnia-Hercegovina remains under international administration to this day.

In the last analysis, it is indeed up to the European Union to play the lead role in writing the next chapter of Serbia/Kosovo history. The threat of renewed violence is so appalling that the need for a sinking of differences and the forging of a common front - which is what the common foreign policy calls for - has seldom been so urgent. The next few months will be a test for the EU, for if it cannot act to resolve a serious problem virtually on its doorstep, its pretensions to be a significant player on the international stage will remain precisely that, and no more. It does not appear that the UN will be able to play a significant role, and hard-pressed NATO may well ask why it should. The ICG's report and recommendations are both timely and on target.


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