Crimea, Kosovo, Hobgoblins and Hypocrisy

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.