Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia

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Zoran Oklopcic is Assistant Professor, Department of Law, Carleton University, Ottawa

Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia” and de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

What is the role of self-determination in regulating territorial conflicts in the post-Cold War world? According to the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia: there is no such role. The Report takes a conservative view on the principle of self-determination claiming that it can justify the emergence of new states only in the contexts of decolonization. While noting that there is a body of scholarship that understands self-determination in a remedial way—as a right of seriously persecuted groups to secede from an oppressive state, the Report claims that documents that purport to give backing to this interpretation, such as the Friendly Relations Declaration, are merely “ a deviation from general state practice” (138).

The Report is not without ambiguities, and quite possibly inconsistencies. In Chapter 3 of Volume 2, the Report discusses the criteria for statehood consisting of objective and ‘additional’ criteria. The objective criteria are a defined territory, a permanent population, and an effective government. Interestingly, the Report mentions self-determination as an additional “standard for the qualification of an entity as a state”, which together with prohibition of the use of force and the degree of recognition of the entity ought to inform the judgment of states about whether or not to recognize the nascent entity as an independent state. From this list, one might infer that the officials of foreign states ought to make a judgment about whether the emergent entity has been created in accordance with the principle of self-determination. Given the Report’s opinion on the geographical and historical scope of self-determination, such a judgment couldn’t apply to the states that arose outside of a decolonization context. A more charitable (if questionable), reading of the ‘additional standard’ would be to understand self-determination in its internal capacity. Understood this way, the “qualification” of whether a state exists would turn on whether the new entity provides mechanisms for participation, representation and political equality. The Report does maintain the possibility that the additional criterion of self-determination is not necessarily a legal norm, but a political standard. Such an interpretation would show the way out of inconsistency, but would immediately open up a more difficult question: How can we access the putative normative promise of self-determination now that self-determination had become a defunct legal principle unable to tell us when to trigger the creation of a new polity, how to draw its boundaries, and what degree of recognition to accord to such an entity? 

The Report, understandably, doesn’t engage this question, but does mention the vocabulary that envelopes the independence of Kosovo, sympathetically invoking the positions of the Council of Europe and the UN Secretary-General, “that Kosovo is a sui generis case which does not constitute a precedent for other territorial conflicts” (140). Among states, the United States, for example, have also justified Kosovo’s independence not by invoking self-determination of peoples, but by claiming that it is made legitimate by “a unique combination of factors”. One of those unique factors is the ‘will of the people’, or the ‘consent of the vast majority of the governed’. While this may at first blush sound like self-determination, we should be mindful of the shift in the style of the argument. The ‘will of the people’ is not the will of the legally self-determining ‘people’. Rather, it is a mere factor in a prudential calculus of whether or not a pre-designated entity ought to become a sovereign state. Kosovo is not independent because the application of international law demands it, but because the political judgment of the US advises it that it is—all things considered—for the best.

The Report rightly rejected the Russian position, which claimed that Kosovo’s independence will set a precedent. “Precedents as such are not a source of international law; they can only give indications for the emergence of a new rule of customary law”, the Report declared. (140). But on a different level, Russia is right. Kosovo indeed sets a precedent for a shift in the style of argument. We are moving from the universe of application of the legal principle of self-determination to the constellation of sui generis cases; where Kosovo and Abkhazia and South Ossetia are unique—but as Russians seem to suggest—unique like everyone else.

Thinking casuistically doesn’t preclude—in fact it invites—thinking across the seemingly disparate cases. For example, the Report’s appreciation of the objective criteria for statehood are not only relevant for Abkhazia and South Ossetia; they are relevant for Kosovo as well. According to the Report, an entity is not a “(full) state” if it is not universally recognized (128). Such a position would relegate Kosovo’s status, at least for now, to that of what the Report called a “state-like entity.” Equally, the objective criterion of ‘effective government’—which requires that there is no “foreign control overbearing the decision-making of the entity concerned on a wide range of matters of high policy and doing so systematically and on a permanent basis” would demand that EU member states treat South Ossetia and Kosovo alike. If the existence of ‘effective government’ was denied in the case of South Ossetia because the Russian influence is “so decisive”, “systematic, and exercised on a permanent basis”, this surely would apply to Kosovo, whose constitution vests final legal and political authority in the person of the International Civilian Representative. (cf. Constitution of Kosovo, arts. 146.2, 144, 143.3).

So, quo vadis, sui generis?

The Report claimed that self-determination doesn’t apply outside of a post-colonial context. For some lawyers, and their states, that may sound striking. The Slovenian and Albanian written submissions (see here) prepared for the ICJ in the Kosovo case, for example, confidently invoke the right to self-determination as a justification for the independence of Kosovo. We will soon see whether the ICJ will lean towards the interpretation of self-determination offered by the Report, or towards the interpretations of countries such as Slovenia and Albania. It would not be surprising if the Court actually circumnavigates the issue altogether, as advised by the United States and United Kingdom. If it did take this route, it would follow a pattern of evasion, present in the canonical texts on self-determination invoked today.

For example, while the Badinter Opinions were hailed as ‘second breath’ for the self-determination of peoples, they did not invoke self-determination of peoples to justify the secession of the Yugoslav republics. Quite the opposite, actually, as self-determination was invoked, as Richard Caplan argues, “not to support, but to restrict the emergence of the new states in the region”. Equally, the Five Expert Opinion that re-deployed Badinter arguments in the context of Quebec was even more explicit, claiming that self-determination is “of limited relevance” as justification of secession outside of the colonial context. Finally, the Canadian Supreme Court’s Secession Reference, which is taken as an exemplar of cogent argument in favour of ‘remedial’ self-determination, denied any relevance of self-determination in the context of the secession of Quebec.

Is then the news of self-determination’s death greatly exaggerated, given the divergent voices about its status in the post-decolonization period? That would depend less, I would argue, on one’s reconstruction of the states’ practice and interpretation of canonical texts, and more on the general theoretical commitments of those who are engaged in the project of international law. In approaching self-determination, I think that we have three options on the table.

The first is to approach the legal principle of self-determination normatively, and—either de lege lata or de lege ferenda—argue in favour of the existence of the additional category of ‘remedial’ self-determination. The problem with that approach is that it speaks only about the reasons of why we ought to engage in secession, and not about how to draw the boundaries, or to determine the future status of a territorial entity. If applied consequently, a ‘remedial’ entity would be drawn around the oppressed group, excluding those who weren’t oppressed, as well as those who were the oppressors. In the case of Kosovo, that would suggest a Swiss cheese-type  territorial jurisdiction for Kosovo Albanians, excluding Kosovo Serbs and other nationalities that were, in turn, both considered as oppressors and oppressed in the period 1989-2008. The alternative is to argue that an oppressed group would be allowed to secede, but only in the currently existing administrative boundaries. This could be considered bizarre: you could secede if you were an oppressed majority within a pre-existing autonomous unit, but you should endure oppression if you’re not lucky enough to have a unit of your own.

The second approach to self-determination is analytical. Even those who argue that the Kosovo case is sui generis and ‘unique combination of factors’ invoke the ‘will of the people’. Surely, if ‘the will of the people’ is invoked to justify a particular political outcome, that must have something to do with self-determination. If we agreed that self-determination is, as a legal principle, inapplicable, the only thing that we could do, from an analytical point of view, is to isolate the stage at which the vocabulary of peoplehood operates and call that self-determination. Such move would circumscribe the scope of application of self-determination and change its character. Encapsulated in a formula, self-determination would only mean that a nascent entity couldn’t become a state without enjoying the support of the majority of its population.

The third approach is prudential, but builds on both a normative and analytical approach. Unlike the latter two, the prudential approach does not attempt to salvage self-determination, either as a legal norm, or as a distinct political concept. Rather, it embraces self-determination’s demise. From the first approach it takes the moral ideal of remedial justice, as one of the possible justifications for the triggering of the creation of a new community. From the second, it takes up the idea that the degree of consent is important in determining the boundaries as well as the status of a nascent polity. In addition to those, there are other values that will be thrown in the contingent mix: “ensuring multiethnicity”, “functionality”, “regional stability” and so on (“The Contact group – Ten Guidelines Principles – October 7th 2005”). Arguing within the prudential approach would not mean asking whether self-determination applies or not. Rather it would require of us to ask: whether a proposed solution would bring regional stability?  Could we increase the degree of consent by further redrawing boundaries? Is independence the best way to achieve functionality? Being critically attuned to the facts of the present case does not preclude comparison across cases. If the EU’s Report the Georgian revocation of South Ossetian autonomy is not a valid reason to recognize its independence (146), it is legitimate to ask why it should be in the case of Kosovo, as some countries argue.

Embracing the prudential approach may or may not be bad news for international lawyers, but for all of those perpetually irked by self-determination’s inconsistencies and hypocrisies, such a development could actually be refreshing.

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