Crimea, Kosovo, Hobgoblins and Hypocrisy

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One of the more remarkable aspects of the whole unfortunate Ukraine episode is the rampant hypocrisy on part of all of the major players involved in the dispute. Those same Western states that unlawfully invaded Iraq, and supported Kosovo’s secession from Serbia while endlessly repeating that Kosovo was somehow a really super-special sui generis case, are now pontificating about the sanctity of the UN Charter and territorial integrity.  On the other hand, that same Russia that fought two bloody wars in the 1990s to keep Chechnya within its fold, that same Russia that to this day refuses to accept the independence of Kosovo, has now rediscovered a principle of self-determination that apparently allows for the casual dismemberment of existing states.

I am not saying that no distinctions can be drawn between the various situations I just mentioned. In particular, I agree with many of the arguments in the recent posts by Christian Marxsen and Jure Vidmar about the differences between Crimea and Kosovo, the critical one being that Crimea’s secession is the direct result of Russia’s unlawful military intervention against Ukraine, whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244, which authorized the presence of international forces in Kosovo while disabling Serbia from taking military action to suppress Kosovo’s secession. I would also note that it is more difficult to levy charges of hypocrisy against international lawyers, rather than states or politicians – and I hope that speaks well of our profession. Most international lawyers after all considered the 1999 intervention against Serbia or the 2003 invasion of Iraq to have been unlawful, and most justifiably feel the same way with regard to Russia’s intervention in Ukraine.

But even if Kosovo and Crimea are legally distinguishable, they are still close enough. The West’s position on Crimea is undeniably undermined by their previous stance regarding Kosovo, and they can only blame themselves for that. Just consider President Putin’s speech justifying the annexation of Crimea by reference to Kosovo and the ICJ’s advisory opinion:

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote.  They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

The appeal of this critique is undeniable, even if it is ultimately contradictory and self-defeating. How can he after all say this while continuing to refuse to recognize Kosovo’s independence? His misinterpretations of the Court’s advisory opinion are obvious – the Court never said that Kosovo’s separation from Serbia was legitimate, or that Kosovo is a state under international law. All it said was that the declaration of independence itself, as a piece of paper, did not violate international law, while adding that a declaration could do so if it was the result of an unlawful use of force by a third state (see, e.g., Crimea). The Court of course said absolutely nothing about self-determination, and rightly so.

And while Putin is happy to quote from the US written statement in the Kosovo proceedings (with which everyone most certainly did not agree, as he put it), he fails to quote from Russia’s own, which was very much ‘crystal clear.’ Russia was in fact the only state in the pro-Serbia camp in the advisory proceedings, and indeed the only state among the UNSC P-5, to argue that there is a right to remedial secession for peoples denied their right to internal self-determination, but one subject to exceptionally strict conditions. For example, Russia’s written statement, on p. 31, para. 88, says that:

[T]he Russian Federation is of the view that the primary purpose of the “safeguard clause” [of the Friendly Relations Declaration] is to serve as a guarantee of territorial integrity of States. It is also true that the clause may be construed as authorizing secession under certain conditions. However, those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question. Otherwise, all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.

The written statement adds at pp. 39-40 that:

outside the colonial context, international law allows for secession of a part of a State against the latter’s will only as a matter of self-determination of peoples, and only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the people.

Russia thus claimed that on the facts Kosovo did not satisfy these stringent criteria even in 1999, let alone in 2008 when it declared independence. Similarly, in the oral proceedings before the Court (CR 2009/30), the head of the legal department of the Russian Ministry of Foreign Affairs argued that the population of Kosovo did not constitute a people entitled to self-determination (p. 42, para. 9); that even if they were entitled to self-determination they could exercise that right within Serbia (p. 44, paras. 23-24); and that the principle of territorial integrity stems from peremptory norms of international law which are not binding only upon states (p. 46, para. 34).

If Kosovo, with all the systematic repression inflicted upon its population by Serbian authorities, could not satisfy these criteria, then I fail to see how Crimea ever could. Even accepting at their fullest Russia’s descriptions of extremists influencing the Kiev government, and even assuming that the population of Crimea constitutes a ‘people,’ that people was on no reasonable appraisal of the facts ‘continuously subjected to most severe forms of oppression that endangers [their] very existence.’

Governmental hypocrisy is of course nothing new – foolish consistency has ever been the hobgoblin of little minds. But the sheer brazenness of it, again on the part of both Russia and the West, is simply breathtaking. (And I won’t even begin to describe for an international audience how, in a particularly perverse example of doublethink, most of the population of Serbia today supports Russia’s actions in Ukraine, Kosovo be damned, just to show the Westerners what a total bunch of hypocrites they are).

And to wrap up, readers might be interested in a chapter I’ve just posted on SSRN on arguing the Kosovo case before the ICJ, which is forthcoming in an book on the case I’m editing together with Sir Michael Wood, entitled The Law and Politics of the Kosovo Advisory Opinion, which will be out with OUP later this year. The chapter was finalized before Crimea, but it looks, for example, at why many of Kosovo’s most powerful allies chose not to argue the case in terms of self-determination. The abstract is below, and comments are as ever most welcome:

This chapter looks at how the Kosovo case was argued by the parties appearing before the International Court of Justice in the various stages of its advisory proceedings. My point in doing so is not to establish whether particular arguments were right or wrong, or to re-argue the case in any way. Rather, I am interested in the discursive shift that transpired once the issue of Kosovo’s independence (at least partly) moved from the political arena to the judicial one. In other words, I want to look at how those justifying or opposing Kosovo’s independence had to adjust their arguments, or develop new ones, once the case came before the Court.

The highly formalized setting of the ICJ required significant adjustments to arguments made either in support or in opposition to independence, as lawyers took over from the politicians and tried make their points in a language that the Court could not only understand, but could also adopt as its own when writing its opinion. Some previously deployed lines of argument thus had to be dropped, others transformed, and yet others invented purely for the sake of the advisory proceedings. In other words, arguments that were persuasive in one context did not necessarily work in the other. For instance, the frequent assertion of the supporters of Kosovo’s independence that Kosovo was a special or sui generis case had to be reframed before the ICJ in order to be truly persuasive. Similarly, whereas the interplay between two broad legal and political principles – the territorial integrity of states and the self-determination of peoples – was considered by many as being crucial for assessing Kosovo’s claim to independence before the advisory proceedings were initiated, these principles became increasingly marginalized as the proceedings progressed.

My goal in this chapter, therefore, is to observe the evolution of the argumentative strategies of the parties appearing before the Court, and to establish the driving factors for this evolution. In doing so I will mostly focus on the written and oral pleadings before the Court, their structure and the nature of the arguments made; the advisory opinion itself will generally be of interest to me only to the extent that it reflects the pleadings and the opposing litigation strategies. What concerns me here, in other words, is not what the Court decided, but how and why it got there.

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Duncan French says

March 20, 2014

Marko, I completely agree - we find ourselves peering into an almost Alice in Wonderland world where a knowledge of history is considered to be a bad thing!

Political reality will, of course, determine where the events go from here, and it remains uncertain whether law is framing the debate or simply playing catch up, or just apologising for them.

I think for me one of the most notable phrases in your piece is "sheer brazenness" - but it is a brazenness emboldened by the previous actions by others that were perhaps done out of best interests (and sometimes out of self-interest), but which ultimately have tempered the international community's ability to hold those States that most "brazenly" violate the law to account.

Miroslav Baros says

March 21, 2014

Dear Marko
I am not sure that there is sufficient evidence to claim:.. in a particularly perverse example of doublethink, most of the population of Serbia today supports Russia’s actions in Ukraine...just to show the Westerners what a total bunch of hypocrites they are). And in particular that "they are a total bunch of hypocrites" is really too far. I don't know what your source of information for this Serbian "support" is and I would love to see it. All political parties have actually been conspicuously silent about the situation. Maybe greater effort is needed to legally distinguish the two situations than to make this kind conclusion.

Joost says

March 21, 2014

Russia is not being hypocritical. After it lost its case with regard to Kosovo (at least as a matter of fact), why should it stick to its previous legal position? For Russia, the law has evolved and it is now acting accordingly. As for Russia's continuing refusal to recognize Kosovo's independence, I suppose it has every right to do so and so for whatever reason.

Maria Zhurnalova-Juppunov says

March 21, 2014

Dear Marko,
I could not agree more. Despite all the talk about the uniqueness of the Kosovo case it will be there to haunt the Western countries and to provide legal justification for cessionist movements within their own borders, as well. As for Russia, its position is self-serving as well. Legal arguments are just twisted and turned to provide a nice veneer for political ends.

Paolo Vargiu says

March 21, 2014

Excellent piece, Marko, and I think you raised a hugely important point in Russia's argument that too many commentators are ignoring or not considering enough with regard to the Crimea problem - namely, what constitutes a 'people'? If Russian considers itself under the mandate to protect all Russian speakers in the world and to allow them to exercise their right to self-determination, then they have a peculiar definition of 'people'. Then again, there may be no need to bring the behaviour of Western countries with Kosovo on the table to find hypocrisy in international law: one may just look at, well, Russia.

MJH says

March 21, 2014

Dear Marko,

Thanks for this post together with some incisive comments.

I do however, for the reasons below, have doubts about your comment to the effect that "whereas Kosovo’s secession was not tainted to the same extent by NATO’s 1999 intervention due to the subsequent adoption of Resolution 1244".

Security Council Resolution 1160 of 31 March 1999 condemned this “use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo, as well as all acts of terrorism by the Kosovo Liberation Army.” Nevertheless, it went on to recognize that:

“[T]he principles for a solution of [this] Kosovo problem should be based on the territorial integrity of the Federal Republic of Yugoslavia and should be in accordance with OSCE standards, including those set out in the Helsinki Final Act of the Conference on Security and Cooperation in Europe of 1975, and the Charter of the United Nations, and that such a solution must also take into account the rights of the Kosovar Albanians and all who live in Kosovo.”

Accordingly, the clear and unambiguous terms set out within SC Resolution 1160 respected, ab initio, the constitutional framework set out in the above-mentioned successive Yugoslav constitutions and moreover, accord with the subsequent 2003 and 2006 Constitutional Charters of Serbia and Montenegro. This refutes Noel Malcolm’s assumption that Kosovo “remained part of some sort of Yugoslav state until June 2006” - an unfounded claim which thus can not be used in the attempt to legitimize this unilateral declaration.

SC Resolution 1160 instigated the process of establishing an international civil and security presence in Kosovo in the attempt to restore peace and security. In doing so, it recognized Serbia’s enduring sovereignty over Kosovo. As such, it went no further than to express support for an “enhanced status” for Kosovo consisting of “a substantially greater degree of autonomy and meaningful self-administration”. These principles were echoed within the Concluding Statement of the Chairman at the meeting of the G-8 Foreign Ministers made on 6 May 1999 as well as The Paper presented to the FRY in Belgrade on 2 June 1999, both of which called for the following:

“[a] political process towards the establishment of an interim political framework agreement providing for substantial self-government for Kosovo, taking full account of the Rambouillet accords and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia…”

Insomuch that Serbia accepted this demand is evidenced in document S/1999/649, circulated at the Security Council on 7 June 1999, stating that “[t]he Government of the Federal Republic of Yugoslavia and the Assembly of the Republic of Serbia accepted [the above-mentioned agreement on principles dated 6 May and 2 June 1999] on 3 June 1999.” Moreover, as indicated in a speech made by the former FRY President Slobodan Milosevic on 9 June 1999 (the day prior to the adoption of SC Resolution 1244), the FRY’s consent to this arrangement was based upon the explicit understanding that Serbia was to retain its sovereignty over Kosovo:

“We have not given up Kosovo. The Group of Eight most developed countries of the world and the United Nations guarantee the sovereignty and territorial integrity of our country. This guarantee is also contained in the draft resolution. The Belgrade agreement has closed the open issues of the possible independence of Kosovo at the time prior to the aggression. The territorial entirety of our country cannot be threatened ... the political process, which will be based on the principles which stem from previously conducted discussions [is] also equally based on the sovereignty and territorial integrity of our country. This means that only autonomy, and nothing else outside that, can be mentioned in this political process.”

In accordance with these international agreements and understandings, on 10 June 1999, the Security Council passed SC Resolution 1244 which warranted the territory of Kosovo being placed under the auspices of the United Nations. Instrumental to this “political process” were two measures overseen by the United Nations: firstly, “the Federal Republic of Yugoslavia… begin and complete a complete verifiable phased withdrawal from Kosovo of all military, police and paramilitary forces according to a rapid timetable, with which the deployment of the international security presence in Kosovo will be synchronized”; secondly, the establishment of “an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia,”. Albeit it being encumbered with Serbia’s recognised reversionary interest(to borrow some phrases from English land law!), it is on this basis that the United Nations Mission in Kosovo had exclusive yet transitional control of Kosovo.

Indeed, SC Resolution 1244 explicitly reiterates the agreed formulations of “substantial autonomy” and “meaningful self-administration” for Kosovo. Such formulations, combined with the consistent omission of any reference to the principle of self-determination, conclusively indicates that there is no legal basis whatsoever for the type of independent statehood that has been unilaterally declared and recognized. This lends credence to the claims that this unilateral declaration and recognition thereof violates both international law and Serbia’s sovereignty. Moreover, in making the unilateral declaration of independence and adopting The Constitution of the Republic of Kosovo, Kosovo’s Assembly has acted ultra vires. In case there is any doubt, the UNMIK ‘Constitutional Framework for Provisional Self-Government’ confirms that Kosovo’s “Provisional Institutions of Self-Government” had no powers to act in the foregoing ways. To do so is to be in breach of the obligation to in no way “affect or diminish the ultimate authority of the SRSG [Special Representative of the Secretary General] for the implementation of UNSCR 1244(1999)”. In this respect, as Chapter 8 Para. 2 of the UNMIK ‘Constitutional Framework’ reserves powers to the SRSG in the domains of defence, justice, legal affairs and foreign affairs, to name just a few, it is suggested that the provisions within The Constitution of the Republic of Kosovo such as Article 2, Article 65 paragraph (12), Article 84 paragraphs (7), (10), (12) and (15) – (25), Article 93, Article 131, Article 151 are contradictory, unlawful and untenable.

In view of these limitations, for this to be any other way remains contingent upon “the determination of Kosovo's future status through a process at an appropriate future stage” which adheres to the “general principles on a political solution to the Kosovo crisis” as stated in Annexes 1 & 2 of SC Resolution 1244. Should it be argued that the provision within the ‘Constitutional Framework’ to “take full account of all relevant factors including the will of the people” provides a window of opportunity for a referendum on the issue of Kosovo’s independent statehood, it is worth remembering that SC Resolution 1244 has precedence over this mere ‘Framework’.

Furthermore, this provision is expressed in a non-imperative and non-binding manner and it makes neither express nor implied reference to the applicability of the right of self-determination within the requisite prospective mechanism for final status. Thus, we have found ourselves in a situation that appears to have gone beyond its clear and unambiguous limits of SC Resolution 1244.

Who was it who stated that “only autonomy, and nothing else outside that, can be mentioned in this political process.”

RonJames1980 says

March 22, 2014

Dear MJH,

UNSC resolution 1244 is clear: Kosovo is and will remain part of Serbia... unless there is a mutual agreed deal. Let's not forget the US tried to change this resolution 5 times. US never brought it to a vote as US knew Russia would veto.

OK, and then: next try... US says that UNSC 1244 is 'not relevant'.

Well, of course it is.

As one Dutch newspaper wrote in 2008: "Well, of course UNSC 1244 says that Kosovo will remain part of Serbia - unless there is this mutual agreed deal. But this only had to be included in the resolution as otherwise Russia would never agree."

Please read again! So we, the West, strike a deal with others (Serbia, Russia, rest of the world). But as soon as the resolution is there we choose to ignore certain parts we do not like (maybe did not like from the beginning).

Miroslav Baros says

March 22, 2014

Am I alone in perceiving that there is a huge gap between what academics think about Kosovo and Crimea and how ordinary people (I am reluctant to use "common sense") see the episodes or any distinction between them? Whilst the majority of ordinary people (just look at readers' comments in thousands in all major newspapers) exhibit a significant level of understanding and sympathy with the Crimean Russians, and I mean in the context of legality, the majority of academics adopt a totally opposite view condemning the referendum! And thinking about the reasons for the discrepancy I am coming to conclusions that every single one I strongly dislike! I hope I don't even have to list them!

Paolo Vargiu says

March 22, 2014

@Miroslav Baros: my feeling is that academics are focusing more on the behaviour - in the legal sense of the term - of Russia on one hand and EU/US on the other (at least that's what I'm doing), and trying to take into account the fact that Putin has made very clear - between the lines - that he's not leaving Crimea one way or the other. As sympathetic as one can be to the Crimean Russian, that's simply not the right way to obtain secession. How seriously should we take a referendum in which one choice is "Are you in favour of the reunification of Crimea with Russia as a subject of the Russian Federation" and the other is "Are you in favour of restoring the 1992 Constitution and the status of Crimea as a part of Ukraine"?

Miroslav Baros says

March 22, 2014

Dear Paolo
This just confirms my perception unfortunately. And on the subject are you implying that the Crimean Russians voted for independence only because of Russian forces (who are there legally by the way)? And that otherwise they would love to stay with Ukraine whose new leadership is illegitimate and who made it clear that Russians would be second class citizens to say the least? Remember Aristide and the Frank's right to demicratic governance"? And this is exactly what I mean by the gap between "us" and "ordinary people". I personally refuse for example to even start analysing the "legality" of drone strikes because any serious thinking and a remote prospect of declaring it legal trivialises the unspeakable suffering of those exposed to such horror on daily basis. So I guess I hate my job and profession.

Paolo Vargiu says

March 22, 2014

Dear Miroslav,

I agree with you that the people of Crimea would have voted to become part of Russia any day of any given week. I'm still concerned though about all the circumstances surrounding the referendum, including (should I say especially?) the legality of the presence of Russian troops in the area. In the shoes of "ordinary people" I should probably ask myself many questions that will never be answered (were the US really behind the riots in Kiev? What are the real reasons behind Putin's intervention? and so on) but as an academic I work with what I have. Not to trivialise the feelings of the people of Crimea, but couldn't the referendum have been drafted differently? Couldn't they raise the issue of going (back) to Russia any other time? What's going to happen now to the Ukranian economy, since they've just lost Crimea and possibly have their exports and trade policy affected irreversibly?

Jordan says

March 23, 2014

Kosovo is also inapt because NATO authorized "regional action" which is permissible under Article 52 of the U.N. Charter as long as the S.C. remains veto-deadlocked and unable to control "regional action" or to authorize or limit S.C. "enforcement action." see [portion on regional action by OAS and by NATO, etc.] and [same]