Self-Determination after Kosovo

Annemarie Peen Rodt, Stefan Wolff

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317530213
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Kosovo embodies a key moment in the international practice of dealing with secessionist self-determination conflicts. For the first time, outside of the colonial context, and excepting Bangladesh in 1971, an entity's declaration of independence has been widely, albeit not universally, recognised. As such, the case of Kosovo has sharpened the focus and intensified the debate on the issue of self-determination conflicts and how they are managed by the international community. This volume contributes to this debate by examining Kosovo in historical and contemporary comparative perspective and by reflecting on the legal, ethical and political implications of its successful declaration of independence.

This book was originally published as a special issue of Europe-Asia Studies.

Self-Determination After Kosovo

STEFAN WOLFF AND ANNEMARIE PEEN RODT

Abstract

This article discusses the meaning of self-determination in its historical and contemporary contexts and examines the different options available for the accommodation of contested self-determination claims. Among these, the creation of a new state, arguably, is the most radical of options and one that has significant regional and global implications beyond the territory to which it is applied. Detailing these implications in relation to the case of Kosovo, we make a broader argument that, even if secession is one mechanism to resolve self-determination disputes, this does not do away with the need to continue exploring settlements short of secession as alternatives to changing established international boundaries.

THE CONFLICT IN KOSOVO WAS (AND, TO SOME EXTENT, REMAINS) AN ethnically motivated self-determination conflict embedded in a region with a (recent) history of similar such conflicts. The conflict, its management by the international community and its various ‘solutions’ have all had, and continue to have, significant implications that reach beyond Kosovo into the Western Balkan region and affect the global debate on self-determination.¹ Kosovo thus stands as one among a number of contested secessions outside the decolonisation context, yet is marked as one of only a few that seems to have succeeded in establishing a newly independent state against the will of the (former) metropolitan state. Prior to 2008, and outside the context of decolonisation, the only clear case of a contested secession leading to the creation of a new state is that of East Pakistan (later Bangladesh) in 1971. The emergence of new states since then, such as those in Central and Eastern Europe after the collapse of communism, is generally not considered to present cases of secession.² The independence of the Baltic republics from the former Soviet Union in 1991 is commonly seen as a case of restoring their pre-existing statehood, preceding by some three months the eventual dissolution of the Soviet Union, leading to the establishment of the 12 remaining successor states. The case of Czechoslovakia presents a similar case of dissolution, while Eritrea’s independence from Ethiopia in 1993, subsequent to a UN-supervised referendum, does not represent a contested secession either. East Timor’s independence from Indonesia in 2002, marking the first creation of a new state in the twenty-first century, in contrast, is generally considered in the context of decolonisation. This leaves the former Yugoslavia which is, of course, integral to the context in which the case of Kosovo must be seen. But here, too, the prevailing consensus is that Yugoslavia presents a case of dissolution (however violent it may have been), perhaps most clearly expressed by the UN Security Council in a resolution of 19 September 1992 stating that ‘the State formerly known as the Social Federal Republic of Yugoslavia has ceased to exist’ (United Nations Security Council 1992).

Seen from this perspective, a series of events in 2008 appear to have marked a watershed in the longstanding debate concerning the much-disputed right of peoples to self-determination. Kosovo’s declaration of independence at the beginning of that year and the subsequent developments in Abkhazia and South Ossetia in the summer seem to have fundamentally changed the prospects of secessionist movements to attain independent statehood. In fact, in the light of these events, some might argue that there are now several successful ‘precedents’ of (contested) secession. The International Court of Justice’s (ICJ) 2010 Advisory Opinion on Kosovo, while not pronouncing itself on the international legal validity or otherwise of the effects of the declaration of independence, nonetheless concluded that the declaration itself was not in breach of international law. The recognition of Kosovo’s statehood by 98 states before and after the ICJ opinion seems to confirm that the obstacles to realise contested self-determination claims may not be as high as previously thought.

Following a brief outline of the background to the Kosovo conflict, this contribution will discuss the notion of self-determination and its relevance in the case of Kosovo, as well as in a broader sense, and the different options available to accommodate contested self-determination claims. Among these, the creation of a new state (or states), arguably, is the most radical of options and one that has significant regional and global implications beyond the (contested) territory to which it is implied. Detailing these implications in relation to the case of Kosovo, we make a broader argument that, even if secession was now much more firmly back on the menu of mechanisms to resolve self-determination disputes, that would not do away with the need to continue exploring settlements short of secession as alternatives to independent statehood or unification with another state.³ There are three reasons for this. First, not every conflict will lend itself to a secessionist settlement. Second, post-secession states are rarely homogeneous and often require mechanisms to protect their own minorities and allow them to participate meaningfully in the political process of the newly independent state. Third, the track record of secessions, including those resulting from a negotiated agreement, of establishing peaceful relations between seceding and rump states and increasing regional and global stability is limited at best. As we (and subsequently our contributors) explore a wide range of cases, our argument is not one against secession per se. We acknowledge the continuing mobilising force of claims to self-determination, but argue that the case of Kosovo, because of the broader implications it has had, does not lend itself easily to the conclusion that secession has now been validated as the only appropriate mechanism to resolve self-determination conflicts.

The path to Kosovo’s declaration of independence

Kosovo never was an ‘easy’ conflict for the international community to deal with. Driven by concerns about the human rights situation and the implications of a possible further escalation of what was then a latent rather than openly violent conflict, a number of international governmental organisations began to adopt various strategies of conflict management from around 1990 onwards,⁴ yet without any lasting success. This can hardly be surprising as the immediate post-Cold War period was marked by significant systemic instability and change. As Economides (in this collection) argues, simultaneous processes of globalisation and fragmentation, further complicated in their consequences by heightened normative and ethical concerns about internal and external state conduct, and the rise of different types of non-state actors as significant players within and beyond states, created an environment in which the idea of (national) self-determination gained new currency, paradoxically resulting both in the creation of new states and the reinforcement of the traditional power of states.⁵ As these four features—globalisation, fragmentation, the emergence of ethically motivated and/or justified foreign policies and the rise in importance of non-state actors in the international system—remain important factors of tension and flux in the contemporary world, Kosovo is hardly the unique case it is all too often claimed to be; rather, Economides argues, it has generic consequences for the future of the international system as well as the relationship between states and peoples within it.

Yet, the difficulties the international community was experiencing in formulating and implementing a consistent and effective policy approach towards the conflict in Kosovo were several and they had their sources not only within the complex framework of relations between the main actors in the international arena but also within Kosovo itself, within the then Federal Republic of Yugoslavia and within the wider region (Wolff 2003). Together these factors have, from the outset, limited the range of possible policies, resulting in international governmental actors failing, individually and collectively, to prevent the conflict from intensifying in the late 1990s. Subsequently, a minimal consensus emerged in the form of UN Security Council Resolution 1244 (United Nations Security Council 1999) on how to administer Kosovo after NATO’s military intervention, but the ‘solution’ that this implied—an international protectorate, for all intents and purposes—did not prove sustainable and resulted in Kosovo’s declaration of independence in February 2008 and its partial international recognition since then.

While some culpability for the mismanagement of the Kosovo conflict, thus, rests with the international community, there is also a very important local context that needs to be considered.⁶ Relations between Albanians, Serbs and members of other ethnic groups in Kosovo have rarely been harmonious. Culturally, the territory was significant for Serbs and Albanians alike, playing an important role in collective identity-shaping myths. With the creation of socialist Yugoslavia after World War II, hopes for the continuation of a greater Albania, created under Italian occupation, vanished into thin air. Several constitutional reforms between 1946 and 1974 increased the autonomy of the region, but failed to address the inter-ethnic unease. After 1974, the Serb population found itself to be increasingly victimised by the Albanian majority in the province. Albanians, from about 1980 onwards, pressed ever harder for Kosovo to have the status of a republic, which in the Yugoslav constitution brought with it a conditional right to secession. Tensions between Serbs and Albanians in Kosovo and between the ethnic Albanian minority and the central government in Belgrade, increasing simultaneously with the rise of nationalism among all ethnic groups in Yugoslavia, culminated in the abolition of Kosovo’s autonomy in 1989. Policies of segregation pursued by Serbs in Kosovo and Belgrade resulted in the creation of two parallel societies—Serb and Albanian. Albanians, after being forced out of the public sector, set up their own institutions, and proclaimed the Republic of Kosovo after a secret referendum as well as parliamentary and presidential elections in 1991 and 1992.

The marginalisation of the Kosovo issue in international politics over the following years, when all eyes were on the wars in Croatia and in Bosnia & Hercegovina, facilitated further radicalisation of Serbs and Albanians. In both communities, moderate voices, to the extent that they existed at all, lost out to those seeking to achieve political goals by recourse to violence. Faced with ever-increasing levels of violence in Kosovo, mounting refugee pressures in Albania, Macedonia and Montenegro, and a clear failure of diplomatic initiatives and sanctions to achieve de-escalation, NATO ‘approved an activation warning order … for both a limited air option and a phased air campaign in Kosovo’ (Kozaryn 1998), a day after the UN Security Council had passed its Resolution 1199 on 23 September 1998 (United Nations Security Council 1998b). Reaffirming its commitment to support a peaceful resolution of the Kosovo problem by means of an enhanced status for the province within the existing borders of the former Republic of Yugoslavia (FRY), the Security Council also declared that the situation in Kosovo was a threat to peace and security in the region and would therefore require the action of the international community according to Chapter VII of the UN Charter. In the resolution, the Security Council demanded that both warring parties put an end to violence and engage in a constructive dialogue. More specifically, the authorities of the FRY were asked, among other things, to stop all actions against the civilian population in Kosovo; to allow international monitoring, the return of refugees and humanitarian assistance; and to commit to a timetable for negotiations and confidence building. Kosovo Albanians were requested to pursue their political goals exclusively by peaceful means, and their leadership was urged to condemn all terrorist acts. Most significantly, however, the Security Council reserved for itself the right ‘to consider further action and additional measures to maintain or restore peace and stability in the region’ in case either one or both parties should not comply with the demands of the two resolutions. This was a much tougher stance than the one adopted in the previous resolution on Kosovo, where the Security Council merely emphasised ‘that failure to make constructive progress towards the peaceful resolution of the situation in Kosovo will lead to the consideration of additional measures’ (United Nations Security Council 1998a).

Resolution 1199 (United Nations Security Council 1998b) and the increasingly determined stance by NATO to intervene militarily, even against Russian objections and in the absence of UN Security Council approval, forced Serbs and Albanians to the negotiation table in early 1999—first in Rambouillet, then at a follow-up conference in Paris (Weller 1999). This last effort at a negotiated settlement having failed, NATO began an air campaign that lasted from 24 March to 11 June 1999 and arguably prepared the ground for Kosovo’s eventual secession from Serbia in 2008.

Kosovo’s declaration of independence from Serbia, thus, was the culmination of a much longer process of a contested self-determination claim that erupted in violence on several occasions. It followed almost a decade of UN administration, which itself was the result of NATO’s controversial intervention in the conflict between ethnic Serbs and ethnic Albanians in 1999.⁷ Given the clear and wide-ranging implications of Kosovo’s unilateral declaration of independence, its partial international recognition, and the equally persistent opposition to such recognition, the UN General Assembly adopted a resolution on 8 October 2008 requesting an advisory opinion from the International Court of Justice on whether Kosovo’s declaration of independence was in accordance with international law.⁸ The Court delivered its Advisory Opinion on 22 July 2010: by ten votes to four, the Judges found that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law. Given the question, albeit without any specific further guidance put to it by the General Assembly, its reading was very narrow indeed: ‘the Court [did] not consider (…) it (…) necessary to address such issues as whether or not the declaration has led to the creation of a State or the status of the acts of recognition’ (International Court of Justice 2010).

Sadly, thus, the Court’s decision contributed little to clarifying any of the wider political issues flowing from Kosovo’s declaration of independence. The ICJ’s Advisory Opinion and the reactions that it sparked were a continuation of debates on Kosovo’s drive towards independence and its undeniably far-reaching practical ram...

Table of contents

• Cover
• Half Title
• Series
• Title Page
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• 1. Self-Determination After Kosovo
• 2. Kosovo, Self-Determination and the International Order
• 3. Preventing the Emergence of Self-Determination as a Norm of Secession: An Assessment of the Kosovo ‘Unique Case’ Argument
• 4. Mass Violence and the Recognition of Kosovo: Suffering and Recognition
• 5. Discourse in Bosnia and Macedonia on the Independence of Kosovo: When and What is a Precedent?
• 6. Kosovo and the Framing of Non-Secessionist Self-Government Claims in Romania
• 7. Crimea: Competing Self-Determination Movements and the Politics at the Centre
• 8. Russia and the Secession of Kosovo: Power, Norms and the Failure of Multilateralism
• Index