Preliminary Thoughts on the Kosovo Opinion

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Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa. Hs previous EJIL:Talk! post on Self-Determination and the Status of Kosovo can be found here.

As we digest the meaning and implications of the recent Advisory Opinion, Separate and Dissenting Opinions, I’d like to offer two preliminary remarks: the first deals with the (lack of) mention of the right to self-determination of peoples, and secondly regarding the identity of the author of the Declaration of Independence of Kosovo.

In its decision, the Court declined to ‘apply’ straightforwardly the norm of self-determination to judge the UDI ‘illegal’ or ‘legal’. Had it chosen to follow the suggestions of Spain, Argentina, Serbia, China and others, Kosovo’s UDI would have been judged illegal because ‘external’ self-determination doesn’t apply outside of the contexts of decolonization and military occupation. Conversely, if following Albania, Estonia, Poland, Germany, Ireland and others, Kosovo’s UDI would have been legal under the ‘remedial’ variant of self-determination.

The Court chose instead to follow the suggestions of the United States, Britain and several other countries, and not to engage in interpretation of the question of self-determination at all. In a situation where opinions on the applicability of self-determination sharply diverge, seeking the lowest common denominator, the lex specialis of UN Resolution 1244 to judge Kosovo’s UDI, could have appeared as a prudent strategy. Interestingly, the Court did not refer to the parallel prong of the US argument—“the unique combination of factors”—that sought to provide a moral component to the otherwise technical reasoning that anchored the legal argument in the interpretation of Res. 1244.

According to Marko’s illuminative post, these two approaches are exemplary of conceptual differences about state-formation. The latter approach is essentially triadic: it divides the conceptual space of state-formation among prohibitions (use of force), permissions (‘external’ self-determination, remedial or not), and a grey middle ground: the universe of unique cases on which international law is largely silent. The former is binary: what is not expressly permitted (external self-determination) is prohibited (territorial integrity of the states).

However, there was, I think, a third strategy which could have blurred the distinction between binary and triadic approaches to state-formation. The Court could have ‘applied’ self-determination but only as one component in the act of balancing a unique set of factors. For example, in Marti Koskenniemi’s oral submission, the Kosovo case requires “neither mechanical rule application, nor recourse to an exception, or indeed politics, but … the application of the relevant legal principles—including those of territorial integrity and self-determination—in a way that is equitable in the circumstances”. (para. 17, Oral Statement, Finland) Such an equitable approach, according to Koskenniemi, would dovetail the only historically accurate account of self-determination which, throughout its history, has been nothing but a remedial concept. Self-determination, Koskenniemi said, “always implied the possibility of secession in case the parent State is unable or unwilling to give guarantees of effective protection.”[1](para. 23, ibid.)

Extrapolating from Koskenniemi, self-determination has always been implicated in state-formation either as a compossible claim-right to external self-determination, or as a prima facie right (a principle), which serves as an ‘optimization requirement’, to borrow from Robert Alexy, and which always requires balancing in the grey zone of unique cases. While following this tack would have given the Court an opportunity to say something about the applicability of self-determination in the post-Cold War world, this avenue would not be without peril. It would have required the Court to say what exactly is ‘self-determinationy’ about self-determination.

It is becoming increasingly difficult to ignore this question. Even if we disagree with Koskenniemi about the normative ubiquity of self-determination, we would still need to spell out the salient moral ‘X’ factor in the ‘unique combination of factors’ that justifies secession in the gray zone, according to the triadic model mentioned above. One factor is, obviously, absence of the use of force. The reason behind the Security Council’s rejection of the UDI of Republika Srpska, for example, was not, according to the Court in this Advisory Opinion, because of the UDI per se, but because it was connected with violations of jus cogens. But, absence of the use of force is surely not enough. Would a so-called failed state be a legitimate object for annexation by a benevolent external power? Could this benevolent external power carve out several new units from such a state, and install a string of benevolent autocrats to govern their docile populations? I am not sure, but it seems that there would be nothing wrong with such scenarios in the grey zone unless one of the factors was something akin to self-determination stricto sensu. In the lead up to the UDI, several diplomats argued that the will of the vast majority of Kosovo’s population is one of those unique factors. Is the will of (the majority of) the people, that what is left of right to external self-determination? I won’t pursue this question here except to say that there is a need for popular consultation, or a majority vote ultimately will not suffice because it, through the use of a conceptual tool—the people—obfuscates the normative ideal that stands behind demands for popular will.

The Court addressed the decisions of ‘the people of Kosovo’ only in the section of the Opinion that deals with the identity of the author of the UDI. The Court argued that the body that adopted the UDI was not ultra vires because it did not act as a Provisional Institution of Self-Government. Rather, “the Court considers that the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order.” (para 105, Advisory Opinion). The Court stated that “the authors of the declaration of independence [acted] as persons … in their capacity as representatives of the people of Kosovo outside the framework of the interim administration” (para109, Advisory Opinion).

How relevant is this late appearing, seemingly off-the-cuff remark about the signatories of the Declaration being the representatives of the people? To what extent would it damage other parts of the Court’s reasoning had they been envoys from the Planet Zoltar, declaring Kosovo independent? While the Court here flirts with the ideas of popular sovereignty and pouvoir constituant it does not—I think wisely—couch the argument in these terms. Several states, in their oral submissions credited the UDI as an act of the constituent power of the Kosovo people, which of course, is question-begging. ‘Kosovo people’ is a construct, owing its existence either to UN Resolution 1244, or to the Serbian constitutional order, or both. But, to speak of the pouvoir constituant of that people, would smuggle back in the question of self-determination and the inconvenient problem of its legitimate bearer. It would bring back the gamut of questions about the legitimacy of administrative boundaries, and the axiomatic way in which the Contact Group imposed them as inviolable in the case of Kosovo. Finally, it would have forced the Court to engage in some inconvenient backpedalling from the Opinions of the Badinter Committee nearly two decades ago.

From the perspective of constitutional theory, however, the decision of the group of individuals who declared Kosovo independent can indeed be seen as an act of constituent power. According to legal philosopher Hans Lindhal, “all exercise of constituent power, necessarily involves a self-mandating act, whereby a political actor claims to represent a community [‘our people’ in the verbiage of the Kosovo Declaration] without having received prior authorization to that effect”.[2] Lindahl claims that the act of the constituent power is an act of transgression, which “ultimately points to the capacity to commence things”.[3] However, Lindhal goes on to point out that the fact that “no community can establish itself without a representation of unity, yet the representation of unity, although transformable to a certain extent, also guarantees that no community succeeds in establishing itself definitely”.[4] Finally, the act of constituent power must be “taken up”; “normative innovation must catch on”.[5] For Lindahl, “whether or not the exercise of constituent power is successful, can only be determined retrospectively”.[6] In other words, we can only objectively identify constituent power after the fact; it is impossible to do so in the moment of invocation.

With this in mind let me say something about the separate and dissenting opinions. While I am sympathetic to Judge Yusuf’s complaint that the phrasing of the question was unduly narrow, he is wrong to attribute the UDI to “the representatives of the people of Kosovo [whose it was to] aim of establish[] such a new State without the consent of the parent State.” (para 2. Separate Opinion, Yusuf). If Lindahl’s theoretical insight above is correct, it can only mean that the act of men and women voting for UDI was an attempted ‘pull-off’—ontologically inevitable posturing, but still posturing—which, only in retrospect, (if it ‘caught on’), can be considered as an act of the ‘people of Kosovo’.  Yusuf is also probably too optimistic in his claim that an assessment by the Court of the existence of a [self-determination] entitlement could have brought clarity to the scope and legal content of the right of self-determination, in its post-colonial conception” and that in doing so, it could have contributed “to the prevention of the misuse of this important right by groups promoting ethnic and tribal divisions within existing States.” (para. 5, Separate Opinion, Yusuf). As it now stands, however, an implication of the Court’s attitude towards Kosovo’s UDI is that there would be nothing illegal or immoral in recursive mini-UDIs on behalf of the municipal pouvoir constituants in Kosovo itself, most notably in the region north of the Ibar River. To define the conditions under which the norm of self-determination is triggered (gross oppression), and to say who is the bearer of that right (Kosovo Albanians) implies nothing about precisely how to draw boundaries around the aggrieved group. One can of course paper over this problem by pretending that the oppression of a section of the population—most likely an ethnic or religious group—and oppression of the population as a whole are the same thing. For Judge Cancao Trinidade, “what has happened in Kosovo is that the victimized “people” or “population” has sought independence, in reaction against systematic and long-lasting terror and oppression, perpetrated in flagrant breach of the fundamental principle of equality and non-discrimination” (para 176. Separate Opinion, Trinidade). If the price for avoiding such category mistakes is a narrow reading of the question posed here, I think it is a price worth paying.

Judge Simma joins complaints about the absence of a treatment of remedial self-determination, adding an interesting argument that,  “[n]one other than the authors of the declaration of independence make reference to the “will of [their] people” in operative paragraph 1 thereof, which is a fairly clear reference to their purported exercise of self-determination.” (para 6, Declaration of Judge Simma). I wouldn’t be so sure. If they thought they were declaring their independence based on the right to self-determination, why didn’t they say so? Compare the wording of Kosovo’s UDI with the Croatian and Slovenian UDIs from 1991. The Croatian declaration begins with reference to the “inalienable, inconsumable, indivisible and untransferable right of the Croatian nation” to self-determination.  (Trifunovska, 1994: 299) The Slovenian declaration, in a similar vein, justifies Slovenian independence “on the basis of the right of the Slovene nation to self-determination, on the principles of international law…” (Trifunovska, 1994: 286). Contra Simma, Kosovo Albanians might have been (well) advised not to make a big fuss out of self-determination in their constitutive documents precisely to avoid attracting judicial scrutiny to this issue which would have raised the question of boundaries, and the right’s legitimate bearer. In contrast to such a scenario, the Court’s minimalist judgment brought them an important political victory.

[1] Ibid. para 24, at 64.

[2]      Hans Lindahl, “Acquiring a Community: The Acquis and the Institution of European Legal Order”  (2003) 9:4 European Law Journal, 441.

[3]      Ibid.

[4]      Ibid. at 447.

[5]      Ibid. at 441.

[6]      Ibid. at 442.

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