Abroad Thoughts from Home
with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
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
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
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
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
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
In This Issue
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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
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
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.