Daily Archives: May 20, 2008

Kosova’s Independence and International Law: updated post.

One of my readers provided me with a translation of my text on Kosova’s Independence and International law.

This was very kind of him, and I am very grateful, both for his translation and his interesting comments, to which i still didn’t have time to fully anwser. The text published here is a slighty improved version of the one I published in portuguese in the other post, and the final section, after the photo, is completely new.

In February 17, 2008, before the Parliament of Kosovo, Prime Minister Hashim Thaçi declared the Independence of Kosovo, to which Serbia reacted, as would be expected, by proclaiming such a declaration illegal.

The Declaration of Independence stipulates that Kosovo will be a democratic, secular and multi-ethnic Republic, based on equality and non-discrimination, and explicitly mentions its connection with the Ahtisaari Plan, notably regarding the rights of minorities. If implemented, this will make Kosovo one of states in the world which gives the most protections and privileges to ethnic minorities. The Declaration also formulates the wish that NATO continue to exercise the functions it had under the mandate of Resolution 1244, and accepts the establishment of the International Civil Service an the UE mission as delineated by the Ahtisaari Plan.

The transition towards independence was prepared in co-ordination with the governments of the United States, the United Kingdom, Germany and France, as well as the High Representative for the Common Foreign and Security Policy of the EU, Javier Solana. Kosovo has already been recognized as an independent state by 41 countries, which thus took their part of the risks implied by such an attitude.

Such risks lie, on the one hand, in the fact that a non-consensual solution necessarily bears negative implications for the stability of the territory, and on the other, in the questionable character of its legitimacy since, according to International law the legality such act depends on the way one interprets Resolution 1244.

The ambiguous way in which it was written allows for two opposite ways of reading it, which in their turn depend on the perspective chosen to interpret it.

If a sovereignist perspective of international relations is privileged, the reference to Serbian sovereignty and the absence of a new UNSC Resolution are strong arguments against recognition.

Yet, if we give prominence to the respect for human rights and the principle of auto-determination of peoples, the perspective will be different.

The Resolution did not specifically define the method for determining the final status of Kosovo, but made an important reference to the need to respect the Final Act of Helsinki [1975].

The sovereignist perspective only invokes the articles related to territorial integrity and the principle of non-interference with the internal affairs of the states. Through that angle, not only the Declaration of independence, but the whole international involvement with the Kosovo issue since 1998 would be illegal.
I have opted not to retrospectively discuss the legality of the Kosovo intervention, since Resolution 1244 has legitimized it, admittedly after the fact, by invoking Chapter VII of the United Nations Charter.

In what regards the Final Act of Helsinki, the Resolution does not quote any article in particular, and that document also enshrines the principle of self-determination, respect for human rights and the protection of minorities. According to that perspective, the recognition of Kosovo independence does not violate Resolution 1244, and thus such an option does not result in any violation of International Law, since the creation of new states does not fall within the competences of the UN.

On that issue Serbia, which considers the recognition of Kosovo illegal in the context of International Law has announced its intention to ask for an advice from the International Court of Justice.

It is my opinion that to interpret the Helsinki Final Act in a strict way, referring to only the articles related to sovereignty is goes against the spirit of this document, and ignores its real meaning and the historical value that it has had in the defense of freedom. In fact, during the final stage of the cold war, eastern Europe dissidents like Vaclav Havel invoked the Helsinki Final Act in their defense. While such strategy didn’t prevent them from suffering the consequences of their defiance of the system, it enable them to make clear to the world that their states had no interests whatsoever to respect the International Law, and specifically the agreements their governments had signed.
While applying the Helsinki Final Act to the case of Kosovo, we can neither ignore the degree of violence to which the people of Kosova was systematically subjected since 1912, and particularly in the period between 1989, when its autonomy status was revoked by Slobodan Milosevic, and 1999.
Despite the serbian government vague promises that it would grant Kosovo a special status defined by the formula more than autonomy, less than independence, the fact that in the recent past its autonomy was taken away cannot be forgotten. Who could guarantee that in the near future, this act would not be repeated?
If we take in account that failing to protect Embassies from being attacked and arsoned is a flagrant violation of International Law, why should we give credibility to the serbian government argument that by refusing to accept the Independence of Kosovo they are not only defending their national interests and territorial integrity, but also defending International Law itself?

As soon as I have some available time, i will post a text about recognition of States and international Law, however, this will have to wait.

To those interested, I reccomend the work by International Law scholar Alain Pellet: here you can find his legal opinion on the issue of self-determination and International Law.

Just for the sake of honesty, I am not a lawyer neither a scholar in International Law. But still i think I am entitled to have my own opinion, because what is at stake here is an issue of freedom and justice, which are subjects that are not the monopoly of Law scholars.

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Filed under Freedom, International Law, Kosovo, Serbia