kosovo - an alternative (more authoritative) analysis

It came to light that a professor here seems to know a lot about the issue of kosovo independence, and I've had the privilege to listen to his extemporaneous discussion on the topic. (I will keep his name anonymous but his view is different from mine)

Essentially, he disagrees that the Kosovo Albanians have the right to self-determination. His main disagreement is that the Kosovo Albanians do not qualify as a people but only a minority. To be honest I am not sure if I completely understand it, but I think there are two main points:

Firstly, what about the Albanians in Macedonia and Albania?
Secondly, the Albanians had been a minority enjoying autonomy in Serbia.

I personally don't entirely agree that this is settled; rather, i think it's fairly arguable both ways. The mere fact that one ethnic group is present in more than one territory surely cannot deny their right to self-determination, given the current trend of globalisation and the massive ethnic migration during the dissolution of Socialist Federal Republic of Yugoslavia. But this is probably a lot more complicated than i envisage.



He has also advanced a major policy argument against recognising Kosovo as an independent State because this would encourage minorities to provoke their own national States to commit human rights abuse against them, and get international intervention, after which they can proclaim independence. Basically he emphasised the fact that the Kosovans started it in the discriminatory policy against the Serbs driving them out of Kosovo in the first place - though Serbia responded in a fairly disproportionate way. And also, there had been a previous political solution to the problem by giving Kosovo autonomy as part of Serbia - meaning independence had been rejected as an option already. That can't change merely by reason of international intervention.


There is also another issue of State responsibility for intervening in matters of other States leading to secession - it is possible that those NATO states that give recognition might incur responsibility. But i think that is contingent upon Kosovo not having a right to self-determination in the first place, and it is also arguable whether recognition constitutes a sufficient intervening act.

科索沃 – 自決權

以下是一個法律學生的個人淺見。英文原文請參照下面。

一般人對自決權的認知可能會有一些混淆，因爲這一個議題特別複雜，與國際法幾個重要的法則有衝突，而且有法律，政治，社會，經濟的不同層面。以下是從法律角度去分析。

簡單來説，科索沃的阿爾巴尼人的主要論點如下：

他們是一個‘people’（請容許我用英文詞彙，因爲國際法用英文比較準確），而國際法已經認可在他們這種情況擁有自決權。

我本人認爲阿爾巴尼人是一個people的論據挺強的。他們佔科索沃百分之九十的人口，有他們獨特的文化，歷史，語言，習俗，而且，最重要是他們對這一塊土地的一個久遠的聯係。他們也可以說自主權在國際法上已經發展成一個比較廣泛的概念，適用于他們身上，尤其是九十年代南斯拉夫分裂的先例，可以給‘自主權’的適用範圍一個更廣的詮釋。

但塞爾維亞卻有一個更強的法理基礎，去辯護它對領土的權利。

簡單來説，國際社會的穩定和和平建基於領土完整這一個法律原則。其實現在世界不同國家都面對這一個民族獨立的問題，前殖民地領土譬如東帝汶，Gibraltar等，其他如以色列和巴勒斯坦，大陸的西藏，臺灣，澳洲的原居民等等。這一個問題影響深遠，因爲涉及到領土的完整，在某一個程度來説，科索沃是從塞爾維亞手中分割出來的。許多國家都不願意承認科索沃獨立，除了自己的國家利益，政治考慮之外，還有對於承認這一個先例的保留。

在國際法上，領土權優先於自決權，而自決權只曾在有領土爭議的情況下才被引用。原來引用自決權的兩個背景是反殖化和被佔領土。從來沒有先例是在原來完整的領土的情況下讓民族行使自決權。

科索沃和塞爾維亞的領土權並非是沒有爭議的，但我看塞爾維亞的領土權比較強，畢竟經過了南斯拉夫分裂后，已經有了一個暫時性的解決方案，是讓科索沃做自治區。我對其中的歷史和地理背景不熟悉，但一般來説，“番舊賬”説不過去，因爲一當領土邊界劃分后，不可以隨便重新再劃分，不然這個世界的版圖會很亂，而且這些年來分裂的頻密而複雜性很高，追索久遠的歷史領土邊界是不可行的。

科索沃最強的道德理據是人權危機吧，就是塞爾維亞沒有厲行作爲國家對人民的責任，將他們迫害，讓他們重新再被塞爾維亞管核不人道。

但這是道德觀點，而不是法律的觀點。人權危機從來沒有成爲國家分裂的一個法理基礎，開這一個先例是很危險的，因爲每個國家都有一些人權的問題，而且人權有不同的標準，如果人權是一個合法理由，美國和NATO可以隨時按自己的人權標凖介入別的國家，然後承認新國家。

下文有一些更詳細的法律分析，是針對一些國際條約和聯合國大會決議的分析，有點技術性，但希望大家有空可以看一下，提一些意見！

Principle of self-determination at international law: the case of Kosovo (REVISED)

INTRODUCTION AND ABSTRACT

There is a plausible case for the Kosovo Albanians to claim a right to self-determination and exercise it to go independent, although it is acknowledged that the application of this right in this context might not have a long-standing basis at international law. My analysis is by no means a conclusive statement of international law as it stands today as international law is inherently quite fluid and arguable for the most part. This article considers four main legal issues that will inform our analysis.

The central argument in this article is this:

The Kosovo Albanians qualify as a people, and are therefore entitled to a claim for self-determination at international law. Arguably, the right to self-determination has evolved over the last 15 years to be wide enough to cover the current case. Serbia however has a strong claim to territorial integrity and that this claim will likely override any right to self-determination.

DEFINITION

For our purposes, the principle of self-determination is understood in the external, political sense as ‘the right to collectively decide on the political status of a people through democratic means.’ (internal self-determination is essentially participatory democracy within a State)

Self-determination is an ongoing process of choice with a broad scope of possible outcomes, as long as it corresponds to the free and voluntary choice of the people concerned. These outcomes can include secession (separation from State), guarantees of cultural security, self-governance and autonomy, economic self-reliance, etc.

GENERAL PRINCIPLE – WHAT IS CLEAR

The right to self-determination has been recognised at customary international law as embodied in the UN Charter (Articles 1 and 55(2)), ICCPR and ICESCR; recognised by General Assembly resolutions (637A, 1514, 1541, and 2625), Helsinki Final Act, and the African Charter on Human and Peoples’ Rights; and affirmed by the International Court of Justice in various cases eg the Western Sahara, East Timor and Namibia cases.

It is also clear that this principle applies in the context of decolonialisation, for instance, the 1970 Declaration on the Granting of Independence to Colonial Countries and Peoples and the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN (Res 2625) apply specifically to ‘bring an end to colonialism’. That much is not in dispute.

THE BIG ISSUE

The burning question is, ARE THE KOSOVO ALBANIANS ENTITLED TO EXERCISE THE RIGHT TO SELF-DETERMINATION TO SEPARATE FROM THE STATE OF SERBIA?

LEGAL ISSUES

FIRST: WHETHER THE KOSOVO ALBANIANS ARE A PEOPLE

The international legal instruments refer to ‘ALL PEOPLES’ as holders of the right to self-determination. In order for Kosovo Albanians to enjoy the right to self-determination, they have to be a ‘people’.

Definition of ‘peoples’

There is no international consensus on the precise meaning of ‘peoples’. However, it fairly clear that there are a few essential features:

First, the group must possess a focus of identity sufficient for it to attain distinctiveness as a people.

Second, the group must establish a close connection to a particular territory.

Thirdly, the group must be linked by a common history and have expressed a will to live together and continue the common traditions.

UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples has defined a people as:

a group of individual human beings who enjoy some or all of the following common features:

(a) a common historical tradition;

(b) racial or ethnic identity;

(c) cultural homogeneity

(d) linguistic unity;

(e) religious or ideological affinity;

(f) territorial connection;

(g) common economic life.

The UNESCO experts further stated that "the group as a whole must have the will to be identified as a people or the consciousness of being a people,"

A key issue is the distinction between ‘peoples’ and ‘minorities’, as this is the major concern of many States in their opposition to the right to self-determination. The significance of the distinction is that while peoples have the right to self-determination, minorities do not.

What constitutes a minority is largely a question of self-identification. The principal elements include numerical inferiority, ethnic, linguistic, cultural or religious characteristics distinct from those of the rest of the population of a state and the non-dominant position of the minority.

WHY KOSOVO ALBANIANS ARE A PEOPLE:

Kosovo consists of an overwhelming 90% majority of Albanians. They have for centuries long maintained and cultivated distinct characteristics from other groups inhabiting the territory of the former Yugoslavia. They speak a common language (the Albanian language), have their culture and traditions, and share the same customs.

Since 1918, Kosovo has been recognised as a distinct geographical region with clearly defined borders in Yugoslavia. Since the creation of the Socialist Federal Republic of Yugoslavia, Kosovo was an autonomous region and subsequently designated as a province. The borders were in line with the historical lines and could not be changed without approval by Parliament under the Yugoslav Constitution.

The Kosovo Albanians have also spoken in the 1991 Referendum and Declaration for Independence, and again just earlier this month – therefore they have expressed their will as to their political future.

There are a few weaknesses in the argument:

Firstly, the status of ‘autonomous’ region is ambiguous: it can apply equally to many minority regions in the world, for example, Tibet – and it is not clear whether ‘autonomous status’ lends itself to strengthening the argument for it being a people.

Secondly, Kosovo has not always consisted of such an overwhelming majority of Albanians – there were a much bigger proportion of Serbians in the 80’s. A majority of them left Kosovo in the 90’s as a result of the discrimination. Therefore, arguably the demographic domination of the Albanians has not been established for very long.

Thirdly, there is some complexity of the issue with regard to the regional minority of Serbians within Kosovo. The right to self-determination of the people of Kosovo Albanians will necessarily affect them. It is not clear how far it can go.

SECOND ISSUE: IS SECESSION A DOMESTIC MATTER?

Article 2(7) UN Charter:

the UN does not have the authority to intervene in matters which are essentially within the domestic jurisdiction of any State.

There are two ways Serbia can make this argument that it falls within its domestic jurisdiction (meaning the international community should keep their hands off the matter).

Firstly, Serbia can argue that secession in itself is a domestic matter because some internal groups seek to overthrow the government and declare independence. Say Tibet or Quebec wants to set up its own government and separate from China and Canada, these States are likely to argue that it is internal to the States themselves, and not the business of the international community.

But the application of this principle very largely boils down to the second argument: Serbia can argue that it is a domestic matter based on its territorial title to the Kosovo region. Serbia can support this claim by also arguing that the principle of self-determination would violate its territorial integrity. In my view this is the strongest argument that Serbia can make.

The region of Kosovo has been part of the territory of Serbia, and Serbia has the territorial title to this piece of land. At international law, the principle of state sovereignty and territorial integrity are given primacy, and States do not lose their claim to the piece of land merely because the region is inhabited by a certain ethnic group. This is similar to the minority and people distinction, but this lays its focus on the territorial title of the State of Serbia to it – whether or not the Albanians are classified as a people.

The claim that it is Serbian land is very strong given its political boundaries for the last few decades. There is also a very strong international law principle for stability of territorial borders – I will spare you the details, but the legal term is called ‘uti possidetis’ – acceptance that colonial boundaries were not to be challenged after independence. The stability of frontiers comes before the principle of self-determination. This principle applies to all territories, not just colonial territories.

The International Court of Justice has considered this issue in Western Sahara case that the issue of territorial claim comes before the application of principle of self-determination to the people of Western Sahara. If the territory did belong to Mauritania or Morocco, the people of Western Sahara would have had no right to self-determination.

The 1970 Declaration on the Principles of International Law concerning Friendly Relations and Cooperation Among States”, the section entitled 'the principle of equal rights and self-determination of peoples' reads

“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.”

This principle is there mainly for the purpose of stability of international relations, given that most conflicts arise out of territorial disputes. The claim for independence necessarily involves a claim for territory, and therefore infringes the territorial integrity of States. If it is shown to be within Serbian territory, Serbia has a strong claim based on its claim to territorial integrity – and for the same reason, it is a domestic matter.

There is one argument that can be made in rebuttal to affirm the right to self-determination: Serbia does not have the territorial claim to the region of Kosovo, based on some older claim. I don’t have the geographical and historic data to give further analysis on this – but it looks pretty weak to me.

The strongest basis is probably that the Kosovan borders have become an international boundary after the NATO intervention. Kosovo is currently under UN Mandate, and Article 76 of the UN Charter can be invoked to support the argument that after this interim period of UN trusteeship (UN looking after the region, essentially), they would have the right to independence.

The article reads ‘promote their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each terriotry and its peoples and the freely expressed wishes of the people concerned, and as may be provided by the terms of each trusteeship agreement’.

There is however much uncertainty over interpretation of the exact scope of application of this Article.

Firstly, it does not refer to ‘self-determination’, but it refers to ‘self-government’ or ‘independence’ – essentially the stronger and more controversial forms of exercise of the right to self-determination.

Secondly, it does not define the circumstances under which independence or self-government can be a solution – it merely says ‘as may be appropriate to the particular circumstances of the territory’. That seems to me to suggest that the solution still depends on the very circumstances of the territory. That is to say, if Serbia has a territorial claim to the province of Kosovo, neither self-government nor independence can be a possibility.

And I don’t think one can argue that Serbia has lost its territorial claim merely because NATO intervened – it is a general principle of international law that territory obtained by use of force is not recognised, for example, Japan’s claim over Manchuria in World War Two.

THIRD ISSUE: LIMITATION ON TERRITORIAL INTEGRITY?

Although I personally don’t buy it, it can be argued that territorial integrity is not absolute and can be subordinated to the right to self-determination under certain circumstances. The argument goes as follows:

If peoples within existing States are treated in a grossly discriminatory fashion by an unrepresentative government, they can claim self-determination and territorial integrity will not defeat their claim. 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 this right by secession.

To make the argument for the Albanians, Serbia has wronged and oppressed the Albanians in the first place during the humanitarian crisis in 1999. Serbia as a State that grossly violates its international obligations to its citizens has no legitimate claim to invoke this limitation of territorial integrity.

The main features of the Serbian government policy pursued in Kosovo were:

1) a total blockage of the Kosovo Albanian people from a meaningful realisation of its political, economic, social and cultural development, including massive job expulsions, discriminatory land policy, banning mass media in Kosovo;

2) systematic discrimination and the commitment of gross human right violations, including torture, arbitrary arrests and detentions, trials for political prisoners, deliberate and indiscriminate attacks on civilians;

3) the commitment of acts by Serbian military and police seriously attacking the physical existence and integrity of the Kosovo Albanian people especially after the Serbian forces’ crackdowns in Kosovo from early spring 1998.

The legal basis for such an interpretation can be found as follows:

The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, the section entitled 'the principle of equal rights and self-determination of peoples' reads:

“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 self-determination and thus possessed of a government representing the whole people belonging to the territory without distinction as to race creed or color.”

The Vienna Declaration and Programme of Action (1993) while recognising the right of all peoples to self-determination states that:

“this shall not be construed as authorising or encouraging any action which would dismemberor 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 and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.” (Emphasis added).

HOWEVER,

I don’t find this a very strong argument. I find that it puts the cart before the horse.

Its basic argument is basically saying that the prohibition in the two General Assembly Resolutions does not apply when the States themselves do not represent the whole people and deny them the right to internal self-determination.

BUT to say that something is not expressly prohibited DOES NOT MEAN there is a right to do it. The overriding status of territorial integrity over principle of self-determination has been established above – and its claim stems from fundamental purposes of the UN Charter of maintaining peace and security, and territorial integrity and political independence of States are expressly enshrined. Its overriding status stands INDEPENDENTLY OF the States’ treatment of their nationals, sadly as it stands.

FOURTH ISSUE: INTERPRETATION OF THE CONTENT OF THE RIGHT TO SELF-DETERMINATION

The last argument that Serbia can invoke is even if territorial integrity does not override the right to self-determination, the right to self-determination itself at international law does not extend to Kosovo in the present circumstances.

Basically the two clearly recognised situations for right to secession are peoples under colonial or alien domination or under racist regimes.

However, there is no international legal prohibition on the application of the right to self-determination outside these two contexts.

Kosovo can argue that the right has been widened over the past 30 years or so.

First, the right has arguably evolved over the past 15 years as there has been recent state practice in favour of a wider right to secession outside the decolonialisation especially in the dissolution of Yugoslavia and the USSR – the first time the international community has recognised secessionist movements as such. The very recognition of the new States born as a result of the two dissolved States is an affirmation of an extended application of the principle of self-determination.

Secondly, many of the international legal instruments state the right to self determination in very broad terms esp the ICCPR, ICESCR and the African Charter on Human and Peoples’ Rights.

Article 20 of the African Charter on Human and Peoples’ Rights states:

‘All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. ‘

However, the interpretation of the exact content of this right is still very much subject to more legal scrutiny. The law is pretty much still developing in my opinion, and we can’t really say what the precise ambit of the right to self-determination is.